9 Pages Posted: 27 Mar 2014 Last revised: 20 May 2014
Date Written: March 25, 2014
There is an epistemic argument for judicial deference to the decisions of administrative agencies and legislatures: courts do not have easy access to relevant information, and they should defer to those who do. People who are steeped in technical issues, and alert to the importance of those issues, might well be inclined to embrace judicial modesty. In administrative law, then-Professor Stephen Breyer pioneered the view that judge-made doctrines reflect unarticulated assumptions about regulatory policy, and he urged that such doctrines could not be evaluated without a sense of the underlying substance and the likely human consequences. In light of the complexity of the substance, Breyer argued for a degree of modesty. On the Supreme Court, Justice Breyer has often embraced judicial modesty as well, emphasizing the importance and relevance of complex judgments of fact (sometimes with the aid of what we might call "the Breyer Appendix"). The principal qualification is his insistence on reasoned decision making, which he appears to regard as a quid pro quo for deference, as an aspect of the rule of law, and as an indispensable check on arbitrariness.
Keywords: Administrative law, Stephen Breyer, technocratic
Suggested Citation: Suggested Citation
Sunstein, Cass R., From Technocrat to Democrat (March 25, 2014). Harvard Law Review, Forthcoming; Harvard Public Law Working Paper No. 14-10. Available at SSRN: https://ssrn.com/abstract=2414616 or http://dx.doi.org/10.2139/ssrn.2414616