Academic journal article Harvard Law Review

Rationalizing Hard Look Review after the Fact

Academic journal article Harvard Law Review

Rationalizing Hard Look Review after the Fact

Article excerpt


A fundamental illogic of administrative law is that courts strictly review agencies' determinations of fact and policy but defer to their interpretations of law. (1) Presumably, the opposite should be the case: judges should pay closer attention to their specialty--the law--and less to areas in which they have no particular expertise, such as those with scientific and technical aspects. This is not, however, how judicial review of agency decisionmaking is practiced. Instead of deferring to agencies' expert judgment, courts review agencies' fact and policy determinations under an "arbitrary and capricious" standard that has been frequently criticized as being too demanding and therefore generating delays and ossification. (2)

This Note explores solutions to the ossification problem and argues that the central holding of SEC v. Chenery Corp. (3) (Chenery) ought to be loosened to allow agencies to provide post hoc rationalizations for challenged regulations. It thus defends the creation of a type of expanded harmless error review for hard look cases, which would preserve the brunt of arbitrariness review while avoiding wasteful situations in which regulations are remanded only to be affirmed after years of additional hearings, litigation, and delay.

The remainder of this Note proceeds as follows. Part I examines the hard look doctrine, tracing its evolution from the New Deal to the present. It then summarizes, in a preliminary fashion, the costs and benefits of such review, concluding that its costs may be so great as to suggest that the doctrine should be reformed or weakened. Part II then presents one possible alternative--revisiting the Chenery rule--and argues that courts ought not shy away from supplying missing rationales ex post when doing so can save a worthwhile regulation.


Ossification is best seen as a tradeoff--the price society pays for reducing agencies' errors. Stringent judicial review likely deters agencies from acting rashly or without basis, thus minimizing the risk that they will implement unwise policies. But it does so at great expense: long judicial proceedings both delay and discourage agencies from adopting possibly beneficial regulations, creating a bias in favor of the status quo. (4) This Part examines the origins of the hard look doctrine and the ossification problem. Section A traces the evolution of arbitrariness review, and section B examines the doctrine's costs and benefits.

A. The Arbitrary and Capricious Standard

Judicial review of agency policymaking is governed by the Administrative Procedure Act's (5) (APA) requirement that courts set aside actions found to be "arbitrary, capricious, [or] an abuse of discretion." (6) Neither the text nor the legislative history of the APA, however, does much to clarify the stringency required by this form of review. The APA's text suggests little in the way of a determinate rule. It instead seems to call for analysis along the lines of, as Justice Scalia has written, "that test most beloved by a court unwilling to be held to rules (and most feared by litigants who want to know what to expect): th'ol' 'totality of the circumstances' test." (7) Its legislative history is no more revealing. Although commentators have described one of the APA's "prime goal[s]" as "strengthen[ing] judicial review of agency decisions," (8) they have also noted that the Act's legislative history "explains the arbitrary and capricious standard by reference to Supreme Court decisions under the due process clause reviewing government decisions for 'rationality.'" (9) And because rationality review requires the demonstration of only a minimally plausible connection between a permissible goal and the means chosen to accomplish that objective, (10) the test is certainly not one likely to "strengthen judicial review of agency decisions." (11)

Given this conflicting history, the conclusion "that judicial review . …

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