Arbitrariness Review Made Reasonable: Structural and Conceptual Reform of the 'Hard Look'
50 Pages Posted: 28 Nov 2016
Date Written: November 24, 2016
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.
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