Arbitrariness Review Made Reasonable: Structural and Conceptual Reform of the 'Hard Look'

50 Pages Posted: 28 Nov 2016

See all articles by Sidney A. Shapiro

Sidney A. Shapiro

Wake Forest University School of Law

Richard W. Murphy

Texas Tech University School of Law

Date Written: November 24, 2016

Abstract

The “hard look” judicial review doctrine requires an agency to have, at the moment it adopts a rule, a justification strong enough to satisfy the demands of “reasoned decision-making.” To satisfy this requirement, an agency can never rely on post hoc justifications to save a rule. While this ban might itself sound eminently reasonable, its demands are highly artificial, forcing agencies to waste time and resources on developing impenetrable explanations for their rules, and encouraging regulated parties to bloat the rulemaking process with long and complicated comments. To address these problems, courts should allow agencies to defend their rules based on post hoc justifications — so long as they are based on information exposed to public scrutiny during the rulemaking process itself. This proposal, which expands on a suggestion made by Judge Wald of the D.C. Circuit a couple of decades ago, turns out to have surprisingly strong roots both in historical and current practice. Adopting it would enhance agency effectiveness without undermining accountability, fairness, and accuracy. It also acknowledges that courts have an ongoing duty to strike a more appropriate balance among the values served by rulemaking procedures, which importantly includes agency effectiveness.

Suggested Citation

Shapiro, Sidney A. and Murphy, Richard Wyman, Arbitrariness Review Made Reasonable: Structural and Conceptual Reform of the 'Hard Look' (November 24, 2016). Notre Dame Law Review, Vol. 92, No. 1, 2016. Available at SSRN: https://ssrn.com/abstract=2875435

Sidney A. Shapiro (Contact Author)

Wake Forest University School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5430 (Phone)

Richard Wyman Murphy

Texas Tech University School of Law ( email )

1802 Hartford
Lubbock, TX 79409
United States
806-742-3990 ex.320 (Phone)

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