Should Review Doctrine Be Simplified or Restated?

David Zaring, Reasonable Agencies, 96 Va. L. Rev. 2317 (2010).

David Zaring first makes two contributions to the growing empirical literature on judicial review of agency actions and then suggests a dramatic change in doctrine in light of his findings. Based on a study of 226 cases, Zaring found that courts uphold about 70% of agency actions when they apply either the substantial evidence test or the arbitrary and capricious test to agency findings of fact. He then combined his study with over a dozen other empirical studies of judicial review of agency actions to create a meta study of 5081 cases.

In his meta study, Zaring found that courts at all levels uphold about 70% of agency actions no matter what doctrine a court applies. Since choice of review doctrine has no apparent effect on the outcome of a case in which a court reviews an agency action, Zaring argued that courts should simplify review doctrine by replacing the six tests courts now apply with a single simple test—a court should uphold any reasonable agency action.

When I first read Zaring’s article, I found his proposal compelling. It doesn’t make a lot of sense for courts to expend a lot of energy deciding which of six review doctrines to apply in a particular case if a court’s choice of review doctrine has no effect on the outcome of a case. On further reflection, however, I realized that Zaring’s proposed test is incomplete. It is devoid of content unless it is coupled with some set of criteria for determining what makes an agency action reasonable or unreasonable.

If we step back and look at the six review doctrines courts now use in the aggregate, it is apparent that a reviewing court considers three factors in deciding whether to uphold an agency action—(1) the relationship between the action and the statute it purports to implement, (2) the relationship between the action and the available evidence that is relevant to the action; and, (3) the quality of the reasoning the agency uses to link its action to the relevant statute and the available evidence. Each of the six discrete doctrines courts say they apply is just a reference to one or more of those criteria.

I continue to find Zaring’s proposed change in doctrine compelling, but it would have to be restated in a longer form to be susceptible to judicial application. Thus, courts might replace the six doctrines they now use with the following single doctrine—a court will uphold an agency action if the agency explains adequately why the action is consistent with the statute it is implementing and why it is supported by the available evidence relevant to the action.

Of course, courts would then need to explain the manner in which they evaluate the adequacy of the agency reasoning process, the manner in which they evaluate the adequacy of the relationship between the action and the statute it implements, and the manner in which they evaluate the adequacy of the relationship between the available evidence and the action. The resulting doctrinal environment might be an improvement over the existing doctrinal environment in the sense that it is a more accurate and a more complete description of the role of a reviewing court. I doubt, however, that it would represent a simplification of existing doctrine. It might more accurately be characterized as a restatement of existing doctrine.

Whether you call Zaring’s proposal a simplification or a restatement, it is appealing. The article is well worth reading independent of his proposed change in doctrine. It is packed with data, analysis, and useful insights.