March 2010, Volume 96, Issue 1
Reasonable Agencies
by David Zaring
96 Va. L. Rev. 135 (2010)
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This article argues that the complex doctrine of judicial review of administrative action––containing no less than six separate tests depending on the sort of agency action to be reviewed – both descriptively is and normatively should be simplified into a “reasonable agency” standard. Courts, following step 2 of the Chevron doctrine, have started to sneak in a reasonableness standard to their review in lieu of make the difficult distinctions required by current doctrine. Scholars, evaluating the difference between the various doctrinal tests, have started to note their increasing similarity. Empirical research, to which this article adds an additional study have noted that regardless of the standard of review, courts affirm agencies slightly more than two thirds of the time; the variance of the validation rates of agency action, regardless of the standard of review, is surprisingly small. A reasonable agency standard would simplify and clarify administrative law, better describe what courts actually do when confronted with agency action, and better explain the judicial role in the administrative state.
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