Judicial Humility and Reticence in Administrative Law
10 Pages Posted: 9 May 2024
Date Written: May 7, 2024
Abstract
Certain quarters of the bar and the bench praise courts’ deference to agencies as a sign of judicial humility and restraint. Those plaudits, however, proceed from misconceptions about agencies’ ability to communicate technical subject matter to non-expert judges and judges’ ability to apprehend the technical details relevant to resolving legal disputes. That overly dim view of agency communication and judicial comprehension has led deference’s proponents to offer an unnecessary reconceptualization of the judicial role at odds with the third branch’s historic underpinnings. This essay reexamines the expertise and accountability justifications for judicial deference in light of recent scholarship.
Keywords: administrative law; judicial deference
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