David T. Zaring
University of Pennsylvania - Legal Studies Department
March 1, 2010
Virginia Law Review, Vol. 96, No. 1, pp. 2317-2379, 2010
This article argues that the complex doctrine of judicial review of administrative action - containing no less than six separate tests depending on the sort of agency action to be reviewed - both descriptively is and normatively should be simplified into a “reasonable agency” standard. Courts, following step two of the Chevron doctrine, have started to sneak a reasonableness standard into their review in lieu of making the difficult distinctions required by current doctrine. Scholars evaluating the difference among the various doctrinal tests have started to note the increasing similarity among the tests, at least as applied by the courts. Empirical research, to which this Article contributes an additional study, suggests that regardless of the standard of review, courts affirm agencies’ actions slightly more than two thirds of the time; the variance of the validation rates of agency action, regardless of the standard of review, is small. A reasonable agency standard would simplify and clarify administrative law, better describe what courts actually do when confronted with agency action, and better explain the judicial role in the administrative state.
Number of Pages in PDF File: 63
Keywords: Administrative Law, Courts, Chevron, Substantial Evidence
Date posted: March 1, 2010