Deconstructing Arbitrary and Capricious Review

52 Pages Posted: 25 Sep 2013

See all articles by Louis J. Virelli

Louis J. Virelli

Stetson University College of Law

Date Written: 2013

Abstract

Arbitrary and capricious — or “hard look” — review is a critical and legitimizing force in a political and legal environment that is increasingly hostile to administrative government. It employs principles of judicial deference to balance the authority of courts and agencies in pursuit of rational, transparent administrative policymaking. It is thus no surprise that arbitrary and capricious review is a favorite topic of both courts and commentators. Despite this active focus on hard look review, however, a crucial point has been overlooked. Existing scholarship overwhelmingly portrays arbitrary and capricious review as one-dimensional — as applying the same standard in the same way across all manner of agency conduct. This Article rejects this one-dimensional approach and offers a new perspective that represents a potentially transformative view of arbitrary and capricious review. It reconceptualizes hard look review as a multi-dimensional expression of judicial deference and argues that arbitrariness review is both more effective and more easily justified when it is “deconstructed” — when it first divides administrative policymaking into its constituent parts, such as record building, reason giving, input scope and quality, and rationality. This shift exposes arbitrary and capricious review for what I contend it should be: a collection of more particularized inquiries into specific components of agency decision making. The deconstruction model is useful for several reasons. It provides a new and coherent theoretical framework for arbitrary and capricious review. This framework may then be used to evaluate each of the deconstructed components of agency conduct against the underlying principles of judicial deference and goals of hard look review to develop a new, dynamic view of arbitrariness review that tailors judicial deference to discreet aspects of agency decision making. Deconstruction also reveals institutional and systemic benefits to viewing hard look review as a multidimensional exercise. These in turn increase our understanding of how hard look review should be utilized in different contexts and of when courts should defer to the political branches more generally.

Keywords: arbitrary and capricious review, hard look review, judicial deference, administrative policymaking

JEL Classification: K23, K4

Suggested Citation

Virelli, Louis J., Deconstructing Arbitrary and Capricious Review (2013). North Carolina Law Review, Vol. 92, 2014 Forthcoming; Stetson University College of Law Research Paper No. 2013-6. Available at SSRN: https://ssrn.com/abstract=2330327

Louis J. Virelli (Contact Author)

Stetson University College of Law ( email )

1401 61st Street South
Gulfport, FL 33707
United States
727-562-7329 (Phone)
727-343-9319 (Fax)

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