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David Zaring, Reasonable Agencies, 96 Va. L. Rev. 135 (2010).

One of the “hotter” areas of administrative law scholarship in the last few years has been the empirical study of the role of legal doctrine in judicial review of agency action.  In a recent Virginia Law Review article titled Reasonable Agencies, Professor David Zaring adds to this growing body of scholarship by reporting new empirical research on appellate courts’ review of agencies’ formal findings of fact using substantial evidence review.  His main goal, however, is not simply to add yet another empirical study to the pile.  Rather, Professor Zaring draws upon the important empirical work done by others, such as Thomas Miles, Cass Sunstein, William Eskridge, Lauren Baer, Kristin Hickman and Matthew Krueger, and he aggregates the various studies in a way that has not been done before.  Ultimately, his goal is to draw broad conclusions about how courts apply administrative law’s complex judicial review doctrines and to argue that the law of judicial review descriptively has been and normatively should be simplified into one “reasonable agency” standard.

Professor Zaring begins by surveying the law of judicial review and summarizing six different administrative law doctrines that he identifies:  (1) Chevron deference used to review agency interpretations of ambiguous statutes; (2) the less deferential Skidmore standard, which applies when Chevron’s stronger version of deference is inapplicable; (3) de novo review; (4) arbitrary and capricious review applied to informal factual findings; (5) substantial evidence review applied to formal factual findings; and (6) general arbitrariness review used to test the rationality of agency decisions or the adequacy of reasons given.  As Professor Zaring describes, determining exactly which of these standards of review to apply can be a daunting task for courts and litigants, forcing them to sort through many complicated questions, such as whether the agency action involved fact finding, legal interpretation, or policymaking.

After describing what the different standards of review are supposed to do as a doctrinal matter, Professor Zaring steps back to consider whether administrative law really is as complicated as these six different standards of review might suggest.  In other words, do the fine doctrinal distinctions really matter?  He begins his attempt at answering this question by summarizing the voices of various judges and administrative law scholars who have analogized one standard to another or who have noted that they are unable to distinguish among the standards.   Then—getting to the real heart of his article—he synthesizes prior empirical scholarship in the field and adds some new empirical research of his own on substantial evidence review.  His synthesis of these various studies is quite valuable—perhaps the most valuable part of his piece—as it pulls various disparate empirical studies together and considers them in the aggregate.  In the end, when the studies are considered together, Professor Zaring concludes that they demonstrate that regardless of the doctrinal differences among the six standards, the ensuing result is the same:  Appellate courts affirm agencies’ actions slightly more than two thirds of the time.  In other words, as Professor Zaring puts it, “administrative law outcomes do not depend on hard looks, substantial evidence, or distinctions between Chevron and Mead.”

Finally, Professor Zaring concludes by making the case that judicial review of agency action should be simplified.  In his view, since studies indicate that doctrinal differences do not play a significant role in the outcome of administrative law disputes, our current doctrinal web should be replaced with a single, streamlined doctrine:  A reviewing court should uphold any “reasonable” agency decision. According to Professor Zaring, courts are already applying a “reasonable agency” standard and hence the explicit adoption of such a standard would lead to greater clarity and would better describe what courts are already doing.

In order to find Professor Zaring’s article important, useful and thought provoking, one need not necessarily agree with his ultimate push for a “reasonable agency” standard.  I, for example, happen to have serious reservations about whether courts can move on their own initiative toward a single “reasonable agency” standard without flouting congressional intent.  I am also concerned that a single standard might not recognize the different institutional strengths of courts and agencies in different contexts.  Yet despite my reservations about Professor Zaring’s ultimate proposal, I found Professor Zaring’s piece significant and well worth a careful read.  I was most struck by how his article encouraged me—someone who tends to gravitate toward the doctrinal camp of administrative law—to start thinking about how we all should respond to the ever growing body of scholarship that suggests that judges may not be deciding administrative law disputes based on fine doctrinal distinctions.

Specifically, Professor Zaring’s piece encouraged me to continue thinking about how an administrative law professor who heavily stresses doctrine in the classroom should handle these sorts of empirical studies in class.  How can the professor cover the studies without inducing an overly jaded perspective on judicial review and without discouraging students from devoting the requisite amount of time to learning the basic vocabulary of judicial review?  Or what about litigants?  How much time should litigants spend in their briefs on standards of review when they know that the choice of doctrine is not likely to be a significant determinant in the outcome of their dispute?  Professor Zaring’s article highlights the need for dialogue on these sorts of important questions.  In fact, Professor Zaring’s work already appears to have inspired Professor Richard Pierce to think through the answers to some of these questions in an essay titled What Do the Studies of Judicial Review of Agency Actions Mean?, which is forthcoming in the Administrative Law Review.  I hope that additional scholars, legislators, judges and practitioners—inspired by Professor Zaring’s article—will continue to think about these sorts of worthwhile questions in the future.

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Cite as: Kathryn Watts, Grappling with the (In?)significance of Doctrine in Judicial Review, JOTWELL (August 16, 2010) (reviewing David Zaring, Reasonable Agencies, 96 Va. L. Rev. 135 (2010)),