Article

The Real World of Arbitrariness Review

Thomas J. Miles

Assistant Professor of Law, The University of Chicago

Cass R. Sunstein

Karl N. Llewellyn Distinguished Service Professor, The Law School and Department of Political Science, The University of Chicago

We thank Eric Posner, Richard Posner, Peter Strauss, and Adrian Vermeule for helpful comments. We are also grateful to Rachael Dizard, Casey Fronk, Darius Horton, Matthew Johnson, Bryan Mulder, Brett Reynolds, Matthew Tokson, and Adam Wells for superb research assistance.

In the 1960s and 1970s, the federal courts of appeals, above all the United States Court of Appeals for the District of Columbia Circuit, developed the “hard look doctrine.” The doctrine found its origins in judicial decisions requiring administrative agencies to demonstrate that they had taken a “hard look” at the underlying questions of policy and fact. Hence agencies were required to offer detailed, even encyclopedic, explanations for their conclusions, to respond to counterarguments, to justify departures from past practices, and to give careful consideration to alternatives to the proposed course of action. These were procedural requirements, to be sure, but they had significant effects, often shifting regulatory policy in identifiable directions by, for example, discouraging the construction of nuclear power plants and generally leading agencies to give heightened attention to environmental protection. Eventually courts went well beyond these procedural requirements to take a hard look on their own, assessing the reasonableness of agency judgments of policy and fact on their merits.

The goal of hard look review was to police agency decisions for genuine arbitrariness, not to allow federal judges to impose their own policy preferences on the administrative state. Indeed, a central point of judicial review was to respond to the open-ended delegation of discretionary power by ensuring a firm check on agency decisions that might be “irrational or discriminatory.” On this view, the hard look doctrine might be seen as a second-best substitute for the original constitutional safeguards against the uncontrolled exercise of discretion. Judicial scrutiny of agency judgments of policy and fact might even serve as a method for reducing factional power over government in a way that would recall longstanding concerns about the problems posed by the exercise of authority by self-interested private groups.

As it developed, however, the hard look doctrine became highly controversial. Some of the controversy involved its likely effects. Would the doctrine discourage agency action altogether, and therefore freeze the status quo rather than improving agency decisions? Some of the controversy involved its legal foundations. Was hard look review an illegitimate creation of the federal courts? What provision of law authorized federal judges to impose these various requirements on agencies or to give careful scrutiny to the merits? Independent questions lay in the background: Would judicial biases distort the inquiry into reasonableness? Might judicial judgments reflect not an assessment of irrationality or discrimination, but the judges’ own policy commitments?

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