Remedial Restraint in Administrative Law

66 Pages Posted: 2 Sep 2016 Last revised: 29 Apr 2017

Nicholas Bagley

University of Michigan Law School

Date Written: January 11, 2017

Abstract

When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely will the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly excessive. Although the adoption of a context-sensitive remedial standard would increase decision costs and generate inconsistency, the exercise of remedial restraint in appropriate cases may prove superior to a clumsy approach that treats every transgression as worthy of equal sanction.

Keywords: administrative law, remedies

Suggested Citation

Bagley, Nicholas, Remedial Restraint in Administrative Law (January 11, 2017). 127 Columbia Law Review 253 (2017); U of Michigan Public Law Research Paper No. 519. Available at SSRN: https://ssrn.com/abstract=2833274

Nicholas Bagley (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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