Agencies, Courts, and the Limits of Balancing

77 Pages Posted: 12 Feb 2015

See all articles by Daniel A. Farber

Daniel A. Farber

University of California, Berkeley - School of Law

Date Written: February 10, 2015


Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.

This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these categories. It articulates three such guiding principles. Finally, it argues that the one area of disparity between agencies and courts under current law should be resolved by bringing doctrines governing judicial discretion more in line with those governing agency discretion.

Keywords: judicial remedies, administrative law, cost-benefit analysis, statutory interpretation

Suggested Citation

Farber, Daniel A., Agencies, Courts, and the Limits of Balancing (February 10, 2015). UC Berkeley Public Law Research Paper No. 2563393. Available at SSRN: or

Daniel A. Farber (Contact Author)

University of California, Berkeley - School of Law ( email )

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Room 894
Berkeley, CA 94720-7200
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