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Adrian Vermeule, Rationally Arbitrary Decisions (in Administrative Law), Harv. L. Sch. Pub. L. & Legal Theory Res. Paper Series (2013), available at SSRN.

Professor Vermeule has a knack for giving irresistible titles to articles that ask deep questions about administrative law—as demonstrated by the essay that is the subject of this little jot, Rationally Arbitrary Decisions (in Administrative Law). The apparent oxymoron grabs attention: Aren’t arbitrary decisions, by administrative-law hypothesis, irrational? Where reasoned decision-making stops, there arbitrariness begins, no?

There is a problem with this neat dichotomy. If you will forgive a tautology, a reasoned explanation for an action, if actually reasonable, shouldn’t depend on reasons that can’t reasonably be given. Sometimes, agencies must act, and they must do so in the teeth of genuine uncertainty. Embedded in the preceding claim is a distinction often drawn between risk and uncertainty. Risk allows for rational assignment of probabilities to outcomes (e.g., there is a 50% chance that a fair coin will turn up heads). Where genuine uncertainty exists, no such assignment of probabilities is possible—e.g., “[no] human actor … has any epistemic justification for attaching probabilities to events that may or may not occur eons in the future.” (P. 4.) When confronting uncertainty, “reasons run out and a relentless demand for further reason-giving becomes pathological.” (P. 2.)

But, according to Professor Vermeule, courts with some frequency unreasonably insist on reasons anyway. When they do, one might say that they violate their own judicial duty to engage in reasoned decision-making. He also contends that courts sometimes make the substantive mistake of requiring that agencies respond to genuine uncertainty by assuming worst-case scenarios—i.e., if we really have no idea what is going to happen, we should assume the worst.

Professor Vermeule builds his argument around several judicial opinions typifying various types of uncertainty (“brute,” “strategic,” and “model”) that in his view can justify rational arbitrariness by agencies. Let’s take a quick look at his example of “brute uncertainty,” Tucson Herpetological Society v. Salazar, 566 F.3d 870 (9th Cir. 2009). This case, which by 2009 had been proceeding for 16 years, revolved around whether the “flat-tailed horned lizard,” which is a “small cryptically colored iguanid . . . that is restricted to flats and valleys of the western Sonoran desert” should be listed as a threatened species under the Endangered Species Act (ESA). A threatened species is one that “is in danger of extinction throughout all or a significant portion of its range.” 16 U.S.C. § 1532(20). The Secretary first proposed listing the lizard as threatened back in 1993. Since then, the Secretary has repeatedly issued decisions withdrawing the proposed listing, and non-profit environmental groups, such as the Tucson Herpetological Society, have persuaded courts to vacate these withdrawals. In support of a 2006 withdrawal, the Secretary “quantified the lizard’s lost range [and] explained why that range is not ‘significant’ within the meaning of the ESA.” Id. at 875. The Secretary based this conclusion in large part on a finding that “lizard populations persist across most of the species’ current range despite habitat loss and fragmentation.” Id. at 877.

But there was a very basic problem with this finding of persistence. Studies of lizard populations used to rely on “scat counts,” but all sides now agree that counting lizard poop is not a good way to count lizards. And the only available “capture-mark-recapture” study included a warning from the study’s author that it was based on “sparse data” that “should be viewed with caution.” In short, whether lizards were persisting was genuinely uncertain. Nobody but the lizards knew, and they weren’t telling. This left the agency in a bind—the administrative record did not support a finding that the lizard population was viable or non-viable. Either might be regarded as arbitrary.

Given this problem, Professor Vermeule contends that the court of appeals was wrong to throw out the agency’s finding—“[t]he Secretary had to decide in which direction to take a leap of faith, and it is a kind of pathological hyper-rationalism to demand that the Secretary give reasons for taking it one direction rather than the other.” (P. 7.) Also, targeting precautionary attitudes toward decision-making, he maintains that courts should avoid the temptation to impose conservative default rules, e.g., erring on the supposed side of “caution” to assume a low number of lizards. (PP. 7, 10-13.)

Instead, we should all “cheerfully concede[ ]” space for agencies to make findings that are “arbitrary at the first order.” Such decisions, where an agency cannot avoid making them, should not be regarded as “legally arbitrary” so long as they rest on “valid second-order reasons.” (PP. 7, 10-13.) Among other ways, agencies might make rationally arbitrary decisions by extrapolating the future from the past (even though past performance does not guarantee future results), adopting a default rule of sticking to the status quo (even though the status quo is often not so good), following conventional judgments (which are often wrong), or even randomizing. (P. 17-18.) The last approach has the virtue of guaranteeing neutrality but would be particularly hard for agencies to adopt given the courts’ “implacable hostility.” (P. 20.) Still, courts, notwithstanding their biases, should respect agencies’ rationally arbitrary decisions rather than impose deadweight losses on society by “forc[ing] the agency to cough up an epistemically unjustified rationale for what is essentially an arbitrary decision, and rationally so.” (P. 20.)

So far, this little jot has only scratched the surface of a few of the many ideas explored in Professor Vermeule’s engaging essay. To find out what he has to say about strategic uncertainty, model uncertainty, precautionary approaches to arbitrary decisions, the problem of uncertainty as applied to agency information gathering (i.e., figuring out when to stop investigating and start deciding), determining where uncertainty genuinely exists, etc., you will just have to follow the link at the top of the jot.

Before closing, however, here are a few questions, which I hope are not too cute by half, which Professor Vermeule’s essay raised in mind. Professor Vermeule observes that deeply ingrained judicial attitudes are a roadblock to adopting his approach:

The culture of law, which celebrates reason-giving; a related and entirely misguided assumption that the rule of law requires first-order reasons for every choice; the need to justify decisions in the language of reason to officials in other branches, and to the general public; and the aversion to uncertainty and ambiguity that judges share with other humans—all these conspire to produce judicial hyperrationalism. (P. 19.)

Put another way, a very “human” aspect of this culture of law, which agencies share to a large degree, demands or at least encourages a kind of lying where law and reason run out but power has not. Do these lies, so deeply embedded in the system, carry benefits of their own? Might telling the truth about rationally arbitrary decisions undermine these benefits? Is the truth something that should be optimized rather than maximized in this context? Compare Adrian Vermeule, Optimal Abuse of Power, Nw. U.L. Rev. (forthcoming, 2015), available at SSRN. Is the better path uncertain?

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Cite as: Richard Murphy, We Found Out That Counting Lizard Poop Is Not A Good Way To Count Lizards: Now What?, JOTWELL (January 6, 2015) (reviewing Adrian Vermeule, Rationally Arbitrary Decisions (in Administrative Law), Harv. L. Sch. Pub. L. & Legal Theory Res. Paper Series (2013), available at SSRN),