What Do the Studies of Judicial Review of Agency Actions Mean?
Richard J. Pierce Jr.
George Washington University Law School
May 25, 2010
Administrative Law Review, Forthcoming
GWU Legal Studies Research Paper No. 505
GWU Law School Public Law Research Paper No. 505
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?
Number of Pages in PDF File: 19
Date posted: May 26, 2010