Retiring ‘No Look’ Judicial Review in Agency Cases Involving Science

28 Pages Posted: 9 Mar 2021

See all articles by E. Donald Elliott

E. Donald Elliott

Yale Law School; Antonin Scalia Lw School

Date Written: January 14, 2021

Abstract

The Supreme Court's casual statement in Baltimore Gas and Electric Co. v. NRDC, 462 U.S. 87 (1983) that reviewing courts should be "most deferential" to agency predictions "on the frontiers of science" has spawned a liner of cases in the lower courts that rubber stamp agency decisions with what amounts to "no look" judicial review. This development is criticized on a number of legal and policy grounds. It is suggested that the increasing reliance on algorithms and other forms artificial intelligence makes it particularly important for the Supreme Court to clarify the proper standard of review in agency cases involving science.

Keywords: Judicial Review, Deference, Science

Suggested Citation

Elliott, E. Donald, Retiring ‘No Look’ Judicial Review in Agency Cases Involving Science (January 14, 2021). Available at SSRN: https://ssrn.com/abstract=3766372 or http://dx.doi.org/10.2139/ssrn.3766372

E. Donald Elliott (Contact Author)

Yale Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
202 256-4149 (Phone)

Antonin Scalia Lw School ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States

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