Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science
52 Pages Posted: 15 Jul 2010 Last revised: 17 Mar 2011
Date Written: July 14, 2010
When courts review agencies’ scientific and technical determinations, they often emphasize that the specialized subject matter requires them to be at their most deferential. This “super-deference” principle seems appealing because it is supported by basic notions of institutional competence and accommodates a natural judicial tendency to avoid deep encounters with science. But it stands in stark tension with the expectation that courts must reinforce administrative-law values like participation, transparency, and deliberation. And it fails to further the legitimizing function of incorporating the best possible science into institutional decision making. Surprisingly, there is no scholarship comprehensively assessing super deference. This Article begins to fill that gap by evaluating super deference contextually, taking into consideration the norms of both science and administrative law. This analysis reveals that not only does super deference lack merit, it also lacks meaning and any framework for principled application. Building on these observations, this Article develops a normative account of the courts’ role with respect to agency science. When courts engage in such review, they can use their generalist perspectives to their advantage by serving an important translating function for generalist consumers such as Congress and the public at large - an approach that reinforces both scientific and administrative-law values.
Keywords: administrative law, law and science, deference
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