The Deliberation Paradox and Administrative Law
59 Pages Posted: 24 Feb 2014 Last revised: 16 Jan 2016
Date Written: February 22, 2015
Deliberation is a linchpin of administrative decision-making, and is a key basis for judicial deference to the agency’s interpretation of law. But deliberation has a dual valence in other areas of administrative law: it triggers the right to access to agency information in public meeting laws, but bars access in public records laws. This is the first Article to identify and explain what I call the Deliberation Paradox in administrative law. This longstanding but unexplored dichotomy has roots in common law history, separation of powers, the purposes of public access statutes, and assumptions about how the government works. But the development of deference doctrines since Chevron v. NRDC sets deliberation at cross-purposes, confusing agencies about what is publicly accessible and denying the public information about vast swaths of government decision-making. This Article contends that the Deliberation Paradox should be recognized and discarded in favor of an approach that grants deference only to deliberation that is publicly disclosed, with significant implications for judicial deference to agency interpretations of law and for inter-agency collaboration.
Keywords: Administrative law, FOIA, Open government law, Public law
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