What Do the Studies of Judicial Review of Agency Actions Mean?

Abstract

In this essay, I discuss the meaning of ten empirical studies of judicial review of agency actions that have been published over the last twenty years. The most robust findings are: a court’s choice among the six deference doctrines courts now use has no effect on the outcome of cases; the ideological preferences of judges and Justices explain about 30% of their votes; members of politically mixed panels indulge their ideological preferences about half as often as do members of politically homogenous panels; and, the D.C. Circuit is consistently less deferential than other circuits. I conclude by endorsing David Zaring’s proposal to simplify review doctrine by replacing the present six doctrines with a single doctrine - a reviewing court should uphold any reasonable agency decision. A court can implement that doctrine by asking three simple questions: Is the action consistent with applicable statutes? Is the action consistent with the available evidence? Has the agency adequately explained the action?