Deference and Dialogue in Administrative Law
Columbia Law Review, Vol. 111, December 2011
63 Pages Posted: 2 May 2011 Last revised: 28 Mar 2012
Date Written: April 29, 2011
An unevaluated phenomenon in administrative law is serial litigation – that is, constant rounds of court challenges and remands that may span decades. Aside from the obvious – these case families are expensive and time-consuming – they also raise serious questions about the respective roles of courts and agencies. When agencies adopt the same rules on successive remands, for example, we might be concerned whether judicial review makes a difference. But when courts review too heavy-handedly, we worry that they are usurping the role of a presidentially controlled, expert institution. This Article is the first to examine serial litigation and ask what insights such litigation offers for administrative law. The analysis shows that the case families are deeply dialogic; courts and agencies in effect engage in a revealing colloquy over the course of successive reviews and remands. In turn, this dialogic view of serial litigation helps to illuminate the differing roles of courts and agencies while highlighting a number of problematic features of the interplay between standards of review, remedies, and agency behavior. Foremost among these features is the tendency of the dialogic cases to mimic minimum-rationality review, which threatens to disrupt the delicate balance of power between courts and agencies. Taking account of this deficiency and others, the Article offers both theoretical insights and concrete proposals designed to enhance the court-agency dialogue.
Keywords: administrative law, environmental law, risk regulation, deference, serial litigation
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