Judicial Review in Public and Private Governance

57 Pages Posted: 11 Mar 2024

See all articles by Tomer Stein

Tomer Stein

University of Tennessee College of Law

Date Written: February 20, 2024


In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Supreme Court limited judicial deference to universities. In West Virginia v. EPA, the Court reduced deference to administrative agencies. In Coster v. UIP Cos., Inc., the Delaware Supreme Court narrowed deference to boards of directors, proclaimed a new standard of judicial review, and then seemingly retracted it. Common to these constitutional, administrative, and corporate law cases is unpredictability, uncertainty, and incoherence in the use and application of substantive standards of review. The resulting disarray is explicitly acknowledged by the very judges that formulate these standards of review—and those acknowledgments are evenly spread across the political map: Justice Sotomayor described constitutional standards of review as “perplexing;” Delaware’s Chancellor McCormick proclaimed that “the struggle is real” in response to a development in corporate standards of review; and Justice Scalia attested that constitutional law’s tiers of scrutiny are “no more scientific than their names suggest.”

This Article develops a comprehensive theory that remedies the uncertainty, unpredictability, and incoherence of the courts’ substantive standards of review. To that end, the Article advances a novel approach: it draws upon and synthesizes the lessons from judicial review carried out in both public and private governance contexts. While constitutional and administrative law, on the one hand, and corporate law, on the other, may appear to be far removed from each other, the role of judicial review in both is similar—it requires balancing among competing and overlapping sources of authority. The Article adopts this unified perspective to uncover and offer a remedy for the systemic shortcomings that plague our system of judicial review. Specifically, it shows that courts have created a haphazard conflation of standards of review, types of scrutiny, and kinds of deference. This conflation engendered doctrines that erroneously categorize standards of review on the basis of degree rather than kind. To fix this misclassification and the resulting incoherence, the Article looks under the hood of the substantive standards of review and provides a full conceptual and normative guide for the administration of claim-of-fact, scienter, and action scrutiny, and the corresponding epistemic, moral, and institutional deference. This Article also draws the distinction between independent and auxiliary standards of review and introduces the widespread, yet unacknowledged, use of scrutiny modifiers.

Keywords: Judicial Review, Corporate Law, Constitutional Law, Administrative Law, Standards of Review, Tiers of Scrutiny

Suggested Citation

Stein, Tomer, Judicial Review in Public and Private Governance (February 20, 2024). Washington University Law Review, Vol. 102, No. 2, (Forthcoming, 2024), University of Tennessee Legal Studies Research Paper, Available at SSRN: https://ssrn.com/abstract=4732836

Tomer Stein (Contact Author)

University of Tennessee College of Law ( email )

1505 West Cumberland Avenue
Knoxville, TN 37996
United States

HOME PAGE: http://https://law.utk.edu/directory/tomer-s-stein/

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