Jeffrey Pojanowski (University of Virginia - School of Law) has posted Reason and Reasonableness in Review of Agency Decisions ( Northwestern University Law Review, Vol. 104, 2010) on SSRN. Here is the abstract:
Long after the Erie Railroad v. Tompkins, federal courts still expound general federal common law, albeit through the interpretation of federal statutes that incorporate rules and principles of the common law. Federal agencies also administer statutes containing such embedded common law, and it is unclear how much respect, if any, reviewing courts should give to an agency’s interpretation of the same. This Article examines that problem with the aim of situating deference doctrine in broader debates about the character of legal reasoning. Drawing on both common law theory and institutional analysis, this Article argues that the quandary of agency interpretations of common law touches on a fault line in the judiciary’s thinking about deference and the nature of law. Courts’ doubts about their ability to resolve difficult questions without issuing legislative-like commands often lead them to accept merely reasonable agency interpretations, while the inherited common law notion of law aspiring to reason pretermits courts’ complete retreat from all legal ambiguity. This tension lurks just below the surface of much discussion of administrative law doctrine and scholarship, and is a fundamental source of the oft-noted confusion in deference doctrine. Confronting this tension is a crucial first step for shaping a coherent deference regime, or at least recognizing the limits of any such doctrine’s theoretical purity.
And from the text:
The justification for a ―common law‖ Chevron comes with its own challenges. First, as the discussion of the ―pure question‖ exception to deference indicated, there is the risk that a common law approach to statutory interpretation may undermine deference entirely. The common law theorist can reply that this problem is not insuperable. The belief that legal craft can sometimes identify the best, reasoned solution to a dispute does not entail belief that it always can. No less a champion of legal reason than Lon Fuller recognized that ―polycentric‖ problems, such as setting industry wages or prioritizing economic production, cannot be rationally solved through adjudication.254 Because addressing one aspect of a polycentric problem affects all the other centers of the web, ―[o]ne must deal with the whole structure‖ of such problems through managerial direction or contract.255 Tellingly, Fuller identified administrative agency tasks as examples of polycentric problems not amenable to traditional, issue-by-issue adjudication.256 While one can imagine polycentric implications of the simplest disputes—butterfly effects, if you will— polycentricism exists in degrees of immediacy, and courts may be able to identify pockets of comparative simplicity and withhold deference accordingly.257 Such an approach could allow carve-outs for interpretations of embedded common law, preemption doctrine, normative and nondelegation canons, and the like, which presumably lie closer to the core of judicial competence. Such an approach understands deference as a matter of judicial discernment closer to abstention or primary jurisdiction doctrines than the statutory command of reasonableness review of state court interpretations of federal law in habeas proceedings.258
This is a very interesting discussion of an important and neglected issue. Recommended for anyone interested in administrative law.
