Administrative Law [First edition.] 9781315183770, 1315183773, 9781351729147, 1351729144

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Administrative Law

The International Library of Essays in Law and Legal Theory Second Series Series Editor: Tom D. Campbell Titles in the Series: Freedom of Speech, Volumes I and II Larry Alexander

Anti-Discrimination Law Christopher McCrudden

Privacy Eric Barendt

Medical Law and Ethics Sheila McLean

Comparative Legal Cultures John Bell

Mediation Carrie Menkel-Meadow

Contract Law, Volumes I and II Brian Bix

Environmental Law PeterS. Menell

Corporate Law William W. Bratton

Criminal Law Thomas Morawetz

Law and Democracy Tom D. Campbell and Adrienne Stone

Law and Language Thomas Morawetz

Legal Positivism Tom D. Campbell

Law and Anthropology Martha Mundy

Administrative Law Peter Cane

Gender and Justice Ngaire Naffine

International Trade Law Ronald A. Cass and Michael S. Knoll

Law and Economics Eric A. Posner

Sociological Perspectives on Law, Volumes I and II Roger Cotterrell

Japanese Law J. Mark Ramseyer

Intellectual Property Peter Drahos Family, State and Law, Volumes I and II Michael D. Ereeman Natural Law Robert P. George Commercial Law Clayton P. Gillette Competition Law Rosa Greaves Chinese Law and Legal Theory Perry Keller International Law, Volumes I and II Martti Koskenniemi and David Kennedy Constitutional Law Ian D. Loveland Interpretation of Law D. Neil MacCormick and Fernando Atria Human Rights Robert McCorquodale

Justice Wojciech Sadurski The Rule of Law Frederick Schauer Regulation Colin Scott War Crimes Gerry Simpson Restitution Lionel D. Smith Company Law and Society David Sugarman Freedom of Information Robert G. Vaughn Tort Law Ernest J. Weinrib Rights Robin West Welfare Law Lucy A. Williams

Administrative Law

Edited, by

P eter C a n e The Australian National University, Australia

First published 2002 by Ashgate Publishing Reissued 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN 711 Third Avenue, New York, NY 10017, USA

Routledge is an imprint of the Taylor & Francis Group, an informa business © Peter Cane 2002. For copyright of individual articles please refer to the Acknowledgements.

All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Publisher's Note The publisher has gone to great lengths to ensure the quality of this reprint but points out that some imperfections in the original copies may be apparent. Disclaimer The publisher has made every effort to trace copyright holders and welcomes correspondence from those they have been unable to contact. A Library of Congress record exists under LC control number: 2001046270 ISBN 13: 978-1-138-73948-2 (hbk) ISBN 13: 978-1-315-18377-0 (ebk)

Contents Acknowledgements Series Preface Introduction

PART I

GROUNDS OF JUDICIAL REVIEW

1 Timothy Endicott (1998), ‘Questions of Law’, Law Quarterly Review, 114, pp. 292-321. 2 Colin S. Diver (1991), ‘Sound Governance and Sound Law’, Michigan Law Review, 89, pp. 1436-49. 3 Stephen Breyer (1986), ‘Judicial Review of Questions of Law and Policy’, Administrative Law Review, 38, pp. 363-98. 4 John Allison (1994), ‘The Procedural Reason for Judicial Restraint’, Public Law, pp. 452-73.

PART II 5

6 7 8

9

10 11

3 33 47 83

CROSS-CURRENTS

Justice Ronald Sackville (2000), ‘The Limits of Judicial Review of Executive Action - Some Comparisons Between Australia and the United States’, Federal Law Review, 28, pp. 315-30. Susan Rose-Ackerman (1994), ‘American Administrative Law under Siege: Is Germany a Model?’, Harvard Law Review, 107, pp. 1279-302. Martin Shapiro (1996), ‘Codification of Administrative Law: The US and the Union’, European Law Journal, 2, pp. 26-47. Timothy H. Jones (2000), ‘Judicial Review and Codification’, Legal Studies, 20, pp. 517-37.

PART III

vii ix xi

107 123 147 169

EMPIRICAL RESEARCH

Peter H. Schuck and E. Donald Elliott (1990), ‘Studying Administrative Law: A Methodology for, and Report on, New Empirical Research’, Administrative Law Review, 42, pp. 519-43. Genevra Richardson and Maurice Sunkin (1996), ‘Judicial Review: Questions of Impact’, Public Law, Spring, pp. 79-103. Simon Halliday (2000), ‘The Influence of Judicial Review on Bureaucratic Decision-Making’, Public Law, Spring, pp. 110-22.

193 219 245

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12

13

Rosemary O’Leary (1989), T he Impact of Federal Court Decisions on the Policies and Administration of the U.S. Environmental Protection Agency’, Administrative Law Review, 41, pp. 549-74. Hazel Genn (1993), Tribunals and Informal Justice’, Modem Law Review, 56, pp. 393-411.

PART IV 14 15 16 17 18

19 20 21 22

307 335 377 397 421

LIABILITY

David Cohen (1990), ‘Suing the State’, University of Toronto Law Journal, 40, pp. 630-62. William Bishop (1990), The Rational Strength of the Private Law Model’, University of Toronto Law Journal, 40, pp. 663-69. Cass R. Sunstein (1983), ‘Judicial Relief and Public Tort Law’, Yale Law Journal, 92, pp. 749-61. Peter Cane (1999), ‘Damages in Public Law’, Otago Law Review, 9, pp. 489-517.

Name Index

285

THE ECONOMICS OF PUBLIC LAW

Frank B. Cross (1999), The Judiciary and Public Choice’, Hastings Law Journal, 50, pp. 355-82. William Bishop (1990), ‘A Theory of Administrative Law’, Journal of Legal Studies, 19, pp. 489-530. Mark Freedland (1998), ‘Public Law and Private Finance - Placing the Private Finance Initiative in a Public Law Frame’, Public Law, Summer, pp. 288-307. Colin Scott (2000), ‘Accountability in the Regulatory State’, Journal of Law and Society, 27, pp. 38-60. Jody Freeman (2000), ‘Private Parties, Public Functions and the New Administrative Law’, Administrative Law Review, 52, pp. 813-58.

PART V

259

469 503 511 525

555

Acknowledgements The editor and publishers wish to thank the following for permission to use copyright material. ABA Publishing for the essays: Stephen Breyer (1986), ‘Judicial Review of Questions of Law and Policy \ Administrative Law Review, 38, pp. 363-98; Peter H. Schuck and E. Donald Elliott (1990), ‘Studying Administrative Law: A Methodology for, and Report on, New Empirical Research’, Administrative Law Review, 42, pp. 519-43; Rosemary O ’Leary (1989), ‘The Impact of Federal Court Decisions on the Policies and Administration of the U.S. Environmental Protection Agency\ Administrative Law Review, 41, pp. 549-74; Jody Freeman (2000), ‘Private Parties, Public Functions and the New Administrative Law’, Administrative Law Review, 52, pp. 813-58. Reprinted by permission. Blackwell Publishers for the essays: Martin Shapiro (1996), ‘Codification of Administrative Law: The US and the Union’, European Law Journal, 2, pp. 26-47. Copyright © 1996 Blackwell Publishers Ltd; Hazel Genn (1993), ‘Tribunals and Informal Justice’, Modern Law Review, 56, pp. 393-411. Copyright © 1993 Modern Law Review Ltd; Colin Scott (2000), ‘Accountability in the Regulatory State’, Journal of Law and Society, 27, pp. 38-60. Copyright © Blackwell Publishers Ltd. Federal Law Review for the essay: Justice Ronald Sackville (2000), ‘The Limits of Judicial Review of Executive Action - Some Comparisons Between Australia and the United States’, Federal Law Review, 28, pp. 315-30. Copyright © 2000 Ronald Sackville. Harvard Law Review Association for the essay: Susan Rose-Ackerman (1994), ‘American Administrative Law under Siege: Is Germany a Model?’, Harvard Law Review, 107, pp. 1279302. Copyright © 1994 Harvard Law Review Association. Journal of Legal Studies for the essay: William Bishop (1990), ‘A Theory of Administrative Law’, Journal of Legal Studies, 19, pp. 489-530. Copyright © 1990 The University of Chicago. All rights reserved. The Michigan Law Review Association for the essay: Colin S. Diver (1991), ‘Sound Governance and Sound Law’, Michigan Law Review, 89, pp. 1436-49. O’Brien Center for Scholarly Publications for the essay: Frank B. Cross (1999), ‘The Judiciary and Public Choice’, Hastings Law Journal, 50, pp. 355-82. Copyright © 1999 University of California, Hastings College of the Law. Reprinted from 50 Hastings Law Journal 355382 (1999) by permission.

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Otago Law Review Trust Board for the essay: Peter Cane (1999), ‘Damages in Public Law’, Otago Law Review, 9, pp. 489-517. Society of Public Teachers of Law for the essay: Timothy H. Jones (2000), ‘Judicial Review and Codification’, Legal Studies, 20, pp. 517-37. Sweet & Maxwell for the essays: John Allison (1994), ‘The Procedural Reason for Judicial Restraint’, Public Law, pp. 452-73. Copyright © 1994 John Allison; Timothy Endicott (1998), ‘Questions of Law’, Law Quarterly Review, 114, pp. 292-321; Genevra Richardson and Maurice Sunkin (1996), ‘Judicial Review: Questions of Impact’, Public Law, Spring, pp. 79-103; Simon Halliday (2000), ‘The Influence of Judicial Review on Bureaucratic Decision-Making’, Public Law, Spring, pp. 110-22; Mark Freedland (1998), ‘Public Law and Private Finance - Placing the Private Finance Initiative in a Public Law Frame’, Public Law, Summer, pp. 288-307. Copyright © Sweet & Maxwell and Contributors. University of Toronto Press Incorporated for the essays: David Cohen (1990), ‘Suing the State’, University of Toronto Law Journal, 40, pp. 630-62; William Bishop (1990), ‘The Rational Strength of the Private Law Model’, University of Toronto Law Journal, 40, pp. 663-69. Copyright © 1990 University of Toronto Press Incorporated. Reprinted by permission of the University of Toronto Press Incorporated. Yale Law Journal for the essay: Cass R. Sunstein (1983), ‘Judicial Relief and Public Tort Law’, Yale Law Journal, 92, pp. 749-61. Copyright © 1983 The Yale Law Journal Co., Inc. Reprinted by permission of The Yale Law Journal Company and William S. Hein Company from The Yale Law Journal, Vol. 92, pages 749-61. Every effort has been made to trace all the copyright holders, but if any have been inadvertently overlooked the publishers will be pleased to make the necessary arrangement at the first opportunity.

Preface to the Second Series The first series of the International Library of Essays in Law and Legal Theory has established itself as a major research resource with fifty-eight volumes of the most significant theoretical essays in contemporary legal studies. Each volume contains essays of central theoretical importance in its subject area and the series as a whole makes available an extensive range of valuable material of considerable interest to those involved in research, teaching and the study of law. The rapid growth of theoretically interesting scholarly work in law has created a demand for a second series which includes more recent publications of note and earlier essays to which renewed attention is being given. It also affords the opportunity to extend the areas of law covered in the first series. The new series follows the successful pattern of reproducing entire essays with the original page numbers as an aid to comprehensive research and accurate referencing. Editors have selected not only the most influential essays but also those which they consider to be of greatest continuing importance. The objective of the second series is to enlarge the scope of the library, include significant recent work and reflect a variety of editorial perspectives. Each volume is edited by an expert in the specific area who makes the selection on the basis of the quality, influence and significance of the essays, taking care to include essays which are not readily available. Each volume contains a substantial introduction explaining the context and significance of the essays selected. I am most grateful for the care which volume editors have taken in carrying out the complex task of selecting and presenting essays which meet the exacting criteria set for the series. TOM CAMPBELL Series Editor Centre for Applied Philosophy and Public Ethics Charles Sturt University

Introduction This is the second volume of essays on administrative law in this series. T he first volume’ (as I shall refer to it in this Introduction), edited by Denis Galligan, was published in 1992. The essays it contained were organized under five broad headings - General Theory, Modes of Administration, Discretionary Powers, Judicial Review and Procedural Fairness. Some of the essays in this volume pursue themes raised by essays in the first volume, while others deal with topics not covered in the earlier collection. The intention is that the two volumes should complement one another. Most of the questions discussed by authors whose writing appears in the first volume are as topical and important now as they were in 1992 and, indeed, when the essays were first written. One of the purposes of this Introduction is to point out links between the essays in the two volumes. The secondary literature of administrative law makes up a huge body of material, and it is growing at an ever-increasing rate. The selection of essays contained herein cannot be said to be comprehensive or even, perhaps, representative, of the breadth and depth of scholarship in administrative law available today. For one thing, the selection has been made exclusively from amongst material written in English. For another, it is the result of a survey only of journals published in the UK, the USA, Canada, Australia and New Zealand. However, subject to these (admittedly significant) constraints, I have attempted to select essays that raise issues which seem to me to be of more than parochial or local interest and concern.

The Scope of this Volume The volumes in this series are collections of essays originally published in academic journals. The preferred forms of academic publishing vary from country to country. In the USA, journals provide the prime outlet for high-quality academic legal research, and, on average, essays in US law journals are considerably longer than those published in law journals in other parts of the world. This means that much of the most important US scholarship in administrative law appears in law review essays that are too long to be reproduced in a volume such as this. In the course of this Introduction, reference will be made to some such articles. In the UK in recent years a favoured form of law publishing has been the edited volume of original essays written specifically for inclusion in the book, which is published as a monograph. Several valuable collections of essays on administrative law have appeared in recent years and, because such essays cannot be reproduced here, the Introduction will contain references to some of the most significant items.

Some Preliminary Remarks Before introducing the essays contained in this volume, it is worthwhile saying something about what we mean by ‘administrative law’. In the Introduction to the first volume, Denis

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Galligan drew a distinction between two senses of ‘administrative law’. One referred to ‘the body of law - legislative, administrative and adjudicative - by which the programmes of welfare and order are achieved; it consists of laws, practices and institutions through which the goals of welfare and order are attained’. In another sense, administrative law, according to Galligan, ‘is concerned with questions about how different administrative tasks should be carried out, about the suitability of different kinds of institutions for different tasks, and about the general nature of administration and regulation’. Uniting these two senses of ‘administrative law’ is a focus on government. In its most general sense, administrative law is concerned with the conduct of government and with the performance of governmental functions. The basic distinction between the two senses is well captured by Cass Sunstein (1991) when he argues that students of administrative law should shift their focus from questions about the control of government activity by courts, for instance, and about the procedures according to which government business is conducted, to ‘the substantive purposes of regulatory regimes’. Regulation is not the only function performed by modern governments; and so Sunstein’s point might be broadened by adding the provision of social welfare benefits and services and the procurement of goods and services to the list of matters that administrative lawyers might study substantively rather than procedurally. The distinction drawn by Sunstein is reminiscent of that made by Harlow and Rawlings (Harlow and Rawlings, 1984, chs 1 and 2; 1997, chs 2 and 3) between ‘red light’ and ‘green light’ approaches to administrative law. Red light approaches are concerned with using law to control and check government activity and to hold the government accountable, while green light approaches are concerned with the role of law in achieving government purposes and getting the business of government done. However, although these two sets of distinctions are related, there is an important difference between Sunstein’s argument and the approach of Harlow and Rawlings. Sunstein contrasts the study of legal control of government with the substance of government policy in areas such as environmental law or social welfare. By contrast, Harlow and Rawling’s ‘green-lighter’ seems concerned not so much with the aims of government policy as with the procedures according to which, and institutional structures within which, the business of government is conducted and its policy goals are pursued. Putting the point crudely, whereas Harlow and Rawlings urge academic lawyers to pay more attention to the way in which government business gets done and less to judicial and other forms of review of government activity, Sunstein’s argument is that courts exercising judicial review powers should pay more attention to the substance of government business and less to procedures and structures. According to Sunstein administrative law: . . . is peculiarly concerned with the distribution of social benefits and burdens in such important areas as social security, taxation, the environment, occupational safety and health, employment nuclear power, energy and national defense. Large substantive issues inevitably lurk behind even apparently mundane doctrinal controversies. (Sunstein, 1991, p. 611)

The important point to note here is that, despite what they seem to say, neither Sunstein nor Harlow and Rawlings are fundamentally talking about what administrative law is and what scholarship in administrative law ought to be about. ‘Administrative law’ is a legal subject area invented essentially for pedagogical and analytical purposes. Government activity (let alone life) cannot be compartmentalized within legal categories. What these authors are saying is

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that we should not allow the way in which legal categories are constructed for analytical and educational purposes to restrict our understanding of the way the world works. So, for instance, a full appreciation of the role of law in environmental protection would require (at least) study of the substance of government policy about the environment, the procedures and institutional structures through which that policy is pursued and the various mechanisms available for checking and controlling the pursuit of government policy objectives in relation to the environment. As governments have become increasingly active in relation to environmental protection, the volume of academic study of such activity has grown enormously and has become much more specialized. Various aspects of the law relating to environmental protection are studied under the headings of ‘environmental law’, ‘regulation’ and ‘administrative law’. No one pretends that any one of these legal categories has a monopoly of understanding about government activity in the area of environmental protection. Nor can it be said that any particular aspect of the study of government activity in this area ‘properly belongs’ to the category of, say, ‘environmental law’ rather than ‘administrative law’ or ‘regulation’. Indeed, these various categories are better viewed as offering different perspectives on the same social phenomena rather than as focusing on different phenomena. In terms of Sunstein’s distinction, the essays in this volume are primarily concerned with the institutions and procedures of government activity, not with the substance of government policy. For this reason, it is worthwhile pondering briefly on the relationship between the categories ‘administrative law’ and ‘constitutional law’. In terms of the traditional distinction between the legislative, executive and judicial branches of government, administrative law, as its name implies, is primarily concerned with the role of the executive branch in the conduct of government business and the pursuit of government policy objectives. However, it is obviously impossible to understand this role without paying careful attention to the relationships between the executive and the other branches of government. The legal aspects of these various relationships are often conceptualized as part of ‘constitutional law’. For instance, ‘separation of powers’, ‘rule of law’ and ‘responsible government’ are usually described as ‘constitutional’ doctrines but, at the same time, they are central to much modern theorizing about administrative law - either explicitly or in the guise of ideas such as ‘comparative institutional competence’ (to use a term common in the US literature). In some legal systems certain aspects of administrative law have ‘constitutional status’ that is, the status of ‘fundamental law’. For instance, in the USA the ‘injury in fact’ test of standing has been read out of (or into) the ‘case or controversy’ requirement of Article III of the Constitution. Under section 75(v) of the Australian Constitution, the High Court possesses entrenched original jurisdiction over claims for certain public law remedies against ‘officers of the Commonwealth’. Most famously, perhaps, the US bill of rights (like the typical domestic bill of rights) is part of the Constitution and so has the status of superior law. It may be for this reason that the substance of human rights law is often thought of as a branch of constitutional law, although, because of its increasing complexity and importance, ‘human rights law’ is now widely treated as a legal category in its own right. As in the case of environmental law, a full understanding of the role of law in protecting freedom of speech, for instance, requires study of the definition and scope of that freedom, of the procedures and institutions by which it is protected, and of the mechanisms available to restrain and remedy its infringement. It is obvious, too, that a full understanding of the role of the executive in the conduct of government business requires study of the constraints imposed by human rights principles and documents on the

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pursuit of governmental policy objectives, as well as study of the implications of these constraints for the way in which government business is conducted, and of the mechanisms available to monitor executive compliance with human rights law. In short, ‘administrative law’ and ‘constitutional law’ are inextricably interwoven - a point strikingly made in Lawson (1994) and there really is no practical point in worrying about the boundaries of these two legal categories. It is, finally, worth observing that there are complex interactions between ‘public law’ (of which administrative law is a part) and ‘private law’ - the law of tort and contract, for example. Like citizens, government entities can (and do) make contracts - with citizens and with other government entities - and they may be both perpetrators and victims of breaches of contract. Governments commit torts and may have torts committed against them. In common law systems, the law of tort and contract are conceptualized as part of ‘private law’ because they were developed primarily in the context of relations between citizens. This poses the question of whether principles of private law are, or should be, modified when applied to government entities. For instance, should the liability of executive government for torts or breaches of contract be assessed according to the same rules and principles as apply to the conduct of citizens or are there, on the contrary, reasons to treat government more or less generously for these purposes? And is this question one of public (administrative) law or one of private law? In French law, where the distinction between private law and public law is much more sharply drawn than in common law systems, ‘administrative contracts’ are distinguished from private law contracts, and ‘[i]n a very real sense . . . there coexist in France two laws of tort, two laws of contract, the one private and the other public or administrative’ (Brown and Bell, 1998, p. 183). These doctrinal distinctions are underpinned by an institutional division between administrative courts on the one hand and civil courts on the other (see generally Allison, 1996). In common law systems, which lack such a dual system of courts, it makes no practical difference, and no analytical sense, to ask whether principles of government tort liability are part of public law or private law. In fact, they straddle the two - although even this observation is of little or no theoretical or practical import. In short, what ties all the essays in this volume together is not that they fall within the province of administrative law (whatever that is taken to be), but that they are all concerned with the legal framework within which government business is conducted, and government policies are pursued, by executive action.

Grounds of Judicial Review It is a widely held view that judicial review of executive action is easier to justify the more ‘deferential’ it is, and harder to justify the more ‘aggressive’ or ‘intrusive’ it is.1For instance, there is a strong tradition in English law that judicial review is (and should be) concerned with ensuring that administrative decision-makers act within their jurisdiction, and not with the ‘merits’ of their decisions. Another persistent theme of both judicial and academic thinking about judicial review is that review on grounds of procedure is to be preferred to review on ‘substantive’ grounds. A third fundamental idea is that the main function of judicial review is to correct errors of law made by administrative decision-makers. Errors of law are contrasted with errors of fact and policy mistakes, although the distinction between questions of law and

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questions of fact is notoriously difficult. A widely held view is that the distinction is typically used to express conclusions about reviewability that are based on unexpressed premises unrelated to the concepts of ‘law’ and ‘fact’. In Chapter 1 Timothy Endicott rejects this approach (which he labels ‘pragmatic’) and argues that a question about the application of statutory provisions to particular facts is a question of law if it admits of only one answer, but a question of fact if it could be answered in more than one way. It is not clear to me that Endicott has correctly characterized the position he is attacking, or that his theory avoids the difficulties that led to the adoption of that position. But the essay offers an excellent discussion of the issues. The distinction between questions of law and questions of policy, and that between questions of fact and questions of policy, are also problematic. In Cane (2000) I discuss these various distinctions in the context of the role of the Australian Administrative Appeals Tribunal (AAT). The Tribunal was designed to provide a mechanism for reviewing administrative decisions ‘on their merits’ (see Chapter 5 in the first volume). For constitutional (‘separation of powers’) reasons, it was thought impossible to confer ‘merits review’ jurisdiction on federal courts established under Chapter III of the Australian Constitution. The AAT was therefore established under Chapter II of the Constitution as part of the executive branch of government. In the first part of my essay I contrast the Australian approach to constitutional separation of powers with the path taken in the USA, and in the second part I question whether the distinction between judicial review and merits review can withstand close analysis. Scepticism about the analytical value of the distinctions between law, fact and policy is also the subject of Chapter 2. This is a review of Edley (1990) by Colin Diver.2The core of Christopher Edley’s book is an attack on use of the law/fact/policy trichotomy as a basis for regulating the relationship between the courts and the executive. The trichotomy rests, ultimately, on ideas about ‘comparative institutional competence’ - as a matter of both constitutional propriety and institutional expertise, judicial review is most secure in relation to questions of law, and least secure in the realm of policy. In place of the trichotomy, Edley suggests that courts should develop a code of principles of ‘sound governance’. But, as Diver points out, Edley does not elaborate this suggestion. A fine recent account of the ‘principles of good administration’ explicit or implicit in English judicial review case-law is Woodhouse (1997, Part II). In terms of comparative institutional competence, a surprising feature of US law, as pointed out by in Chapter 3 by Stephen Breyer (now an Associate Justice of the US Supreme Court), is that administrative law doctrine instructs courts to be more deferential to agency decisions in relation to matters of law than in relation to policy. (This fact is usefully explored in comparative mode by Ronald Sackville in Chapter 5.) One of the points made by Breyer is that adversarial court procedure is not well suited to resolving issues of policy. This point is taken up by John Allison in Chapter 4 in a discussion of Lon Fuller’s famous analysis of the nature of adjudication. (See also Chapter 9 in the first volume.) The decision that established deference as the correct judicial posture towards interpretations of statutory provisions by regulatory agencies - Chevron USA Inc v. Natural Resources Defense Council Inc, 467 US 837 (1984) - is probably the most extensively analysed and discussed decision of the US Supreme Court in the area of administrative law. (Two useful articles from amongst the huge literature are Pierce (1988) and Sunstein (1990).) In an essay that is unfortunately too long to be included in this volume, Robert Choo (2000) discusses the implications for the Chevron doctrine of what is called ‘negotiated rule-making’ (or ‘reg-neg’ for short). One possible justification for the doctrine is that, by reason of technical expertise in

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its area of operation, an agency is in a better position than a court to interpret unclear provisions in its empowering statute in the way most likely to further the goals set for it by Congress. Agency expertise provides the main theoretical justification for the wide rule-making powers enjoyed by regulatory agencies. Choo’s argument is that negotiated rule-making undermines this justification and, hence, the arguments for judicial deference to agency interpretations of statutory provisions as embodied in rules made as a result of negotiation with interested parties.3

Cross-currents Law is a culturally and jurisdictionally specific phenomenon. Administrative law is shaped not only by the social environment in which it operates, but also by the institutional structure and political climate of the governmental processes which it regulates. This feature of law in general, and of administrative law in particular, is predictably reflected in the preoccupations of administrative law scholarship. For instance, because judicial review of executive rule-making is much more highly developed in the USA than in other common law jurisdictions,4 rulemaking provides the main focus of debate in the USA about the legitimacy of judicial review of executive action,5 and even though its proper scope and grounds are highly contested, its legitimacy is generally unquestioned. This is, no doubt, partly because judicial review of congressional legislation for compliance with the Constitution has been accepted in the USA since the famous case of Marbury v. Madison in 1803. If judicial review of congressional legislation is acceptable, it might seem difficult to object to judicial review of executive rulemaking. But this is precisely what Frank Cross does in an essay that is too long to be reproduced here (Cross, 1999). He discusses, and rejects, four main justifications for judicial review of rule-making - a ‘rule of law’ justification, the ‘Marbury’ justification based on the idea that judicial review enforces purely legal limits of executive activity, a ‘dialogic’justification, and a ‘public choice’ justification. His stark conclusion is that review of executive rule-making should be left to ‘the political branches’ of government. He supports this conclusion partly by arguing that there is no evidence that judicial review ‘improves’ the rule-making process. Consequentialist arguments of this sort are the subject of the essays in Part III. The essays reproduced here in Part II explore in greater detail some jurisdictional variations in administrative law, as well as possibilities for cross-fertilization between legal systems, and even borrowing of rules and concepts.6 In Chapter 5, Justice Ronald Sackville (of the Federal Court of Australia, which exercises a very significant administrative law jurisdiction) discusses the fundamental doctrinal differences between Australian and US law in relation to judicial review of questions of law on the one hand, and issues of policy on the other (concerning the US position, see Chapter 3). Much more work needs to be done to provide a convincing explanation of such a striking divergence of approach. Australia is a particularly interesting case because it shares with the UK the Westminster form of government and many of its accompanying political traditions, while at the same time having a written Constitution modelled in significant respects on that of the USA. In Chapter 6 Susan Rose-Ackerman contrasts the position in Germany with that in the USA with regard to judicial review of policy-making, arguing that the much more aggressive form of judicial review practised in the USA (including ‘pre-enforcement’ review of administrative rules) is to be preferred on democratic grounds to the ‘anemic’ German version. Her appeal to

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democracy illustrates the relationship between fundamental political ideas and ideals and the doctrines and practices of administrative law. Rose-Ackerman also favours the formal rulemaking procedures built on the provisions of the Administrative Procedure Act over the more informal and negotiatory style of the German system. This theme is explored in more detail in Ziamou (1999).7 The next two essays explore different facets of the ‘codification’ of administrative law - that is, the use of statutes to provide the foundation for judicial review. The paradigm example of such a statute is the US Administrative Procedure Act (APA) of 1946. The relevant provisions of the APA are brief and cryptic, and they have imposed relatively few constraints on the development by the US Supreme Court of the law of judicial review. In Chapter 7 Martin Shapiro examines the political genesis of the APA (see also Shapiro, 1988, chs 2 and 3) and suggests that similar political forces are now at work in the European Union. The central question for Shapiro is whether EU administrative law will develop from a focus on controlling implementation of policy to controlling policy formulation and rule-making by administrative entities. This distinction between the making and the implementation of policy is fundamental to understanding many of the most distinctive features of the US system of administrative law. Those features, of course, reflect the institutional structure and political history of the US governmental system. Timothy Jones (Chapter 8) offers a more wide-ranging discussion of the pros and cons of codification and of differing styles of codification. He contrasts the generality of the APA with the specificity of the Australian Administrative Decisions (Judicial Review) Act 1977, and counsels against seeing codification as a panacea for the perceived ills of administrative law. Underlying the discussion are fundamental issues about the relationship between courts and governments. In Australia, for instance, codification was a process largely driven by lawyers, who saw it as a way of strengthening the position of citizens vis-à-vis the government. As Jones observes, however, once a statutory code is in place, the government (via the legislature) has more political control over the scope and nature of judicial review of its activities than it might otherwise have had. The comparative study of administrative law is a relatively undeveloped area of scholarly activity. It holds great potential not only for promoting understanding of other countries’ systems of administrative law, but also for gaining a clearer view of one’s own. If space had permitted, Dotan (1997) and Snell (2000) would have been included in this collection. Snell’s essay examines why New Zealand’s superficially less powerful freedom of information legislation has apparently had a greater impact on bureaucratic practice than its initially more promising Australian counterpart. Openness is, of course, an essential prerequisite of an effective system of government accountability to citizens, and Snell’s essay stresses the importance of institutional design in achieving such accountability.

Empirical Research The essays in Parts I and II are all more or less concerned with legal doctrine - that is, with the rules and principles of administrative law. However, law does not, of course, exist simply for its own sake but for the contribution it can make to the quality of social life. Underpinning all legal rules and institutions is an assumption (at least on the part of their supporters) that they

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make the world a better place to live in than it would be in their absence (according to whatever criteria of ‘the good’ is being applied). Whether this assumption is justified in any particular case is an empirical question which could, in principle at least, be verified or falsified by observation of the world. Controlled empirical investigation is, of course, the basic methodology of the natural sciences but, for a variety of reasons, empirical study of the operation of legal rules and institutions is (and will remain) less well developed. As a result, the question of whether the assumption of the beneficence of legal rules and institutions is justified is typically answered by appeal to individual examples (see, for example, Chapter 18 in the first volume; Ackerman and Hassler, 1981; Sunstein, 1989), or - much less satisfactorily - by mere assertion and speculation, rather than by rigorous investigation. This is not to say that there has been no empirical investigation of the operation of administrative law. In the USA, for instance, the effects of the Chevron decision (in which the Supreme Court held that judicial review should be deferential to agency interpretations of statutory provisions) have been the subject of several studies. The results of perhaps the best known of these are reported in the essay by Peter Schuck and Donald Elliott (Chapter 9) and, at much greater length, in Schuck and Elliott (1990). This study was mainly concerned with the impact of the Chevron decision on the behaviour of judges of lower courts, but also yielded information about how regulatory agencies reacted to the judicial overturning of their decisions. The reaction of lower court judges to Supreme Court decisions is also the subject of a study of administrative law decisions by Cross and Tiller (1998). One of the issues they raise concerns the balance between fidelity to doctrine and outcome-oriented decision-making. This is examined in relation to the law of standing in Pierce (1999). The impact of judicial review on bureaucratic behaviour is the subject of Chapter 10. Here Genevra Richardson and Maurie Sunkin address methodological issues in the design of empirical studies and review some of the available data. Chapters 11 and 12 report, respectively, research on the impact of judicial review on local government decision-making in the UK in relation to the housing of homeless persons (by Simon Halliday), and on the activities of the US Environmental Protection Agency (by Rosemary O’Leary). Both present a complex picture of the extent to which courts and law can influence the behaviour of tribunals and administrators. A similarly complex picture emerges from a study of the impact of judicial decisions on the work of the UK Mental Health Review Tribunal by Genevra Richardson and David Machin (2000). A different perspective on the question of impact is provided by Sunkin and Le Sueur (1991), where the authors discuss attempts by the UK government to reduce the vulnerability of administrative decisions to challenge by way of judicial review. Another area in which important empirical research has been done is that of administrative process. Hazel Genn (Chapter 13) reports large-scale research designed ‘to assess the impact of representation [of applicants] on tribunal decision-making and outcomes, and, within this context, to consider whether procedural informality represents a benefit or a potential trap for tribunal applicants’ (p. 285) (see also Genn, 1994). Lack of space prevents inclusion of Ronald Cass’s (1986) study of the impact of the design of internal review mechanisms on achievement of the goals of such review, an important aspect of which is its exploration of the relationship between empirical data and value-judgments in assessing the relative desirability of different review arrangements. Other noteworthy empirical studies of bureaucratic decision-making in the UK include Peay (1989), Baldwin, Wikeley and Young (1992) and Loveland (1995). There is also a large and sophisticated empirical literature on the enforcement of regulatory law, but

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since there is a separate volume in this series on regulation (edited by Colin Scott), I will not attempt to cover it here. Lack of space also prevents inclusion of important UK research on the process and procedure of judicial review. Reports of such research include Bridges, Meszaros and Sunkin (1995), Mullen, Pick and Prosser (1996) and Bridges, Meszaros and Sunkin (2000). The last of these raises the fascinating issue of settlement of judicial review litigation. The most famous contribution to debate about settlement of public law claims is Fiss (1984).

The Economics of Public Law Since its first appearance in the 1960s, economic analysis of law has had a huge impact on legal scholarship. Interestingly, however, economic analysis of law tends to ‘concentrate on the common law fields of tort, contract and property, or . . . on antitrust, public utilities, and trade regulation’ (Rose-Ackerman, 1988, p. 347). The branch of economic theory that is most relevant to administrative law is known as ‘public choice theory’ (see Mashaw, 1997, esp. ch. 7). The public choice approach is based on the fundamental economic assumption that individuals are self-interested utility-maximizers. Applied to political activity, this leads to the cynical and depressing hypothesis that individual actors enter public life for the sake of what they can personally get out of it and not in order to serve ‘the public interest’. Thus, for instance, public choice theory explains legislative activity in terms of competition between rival factions designed to maximize their own interests rather than in terms of the interaction of differing visions of public good. A normative implication of this approach, relevant to administrative law, is that public institutions, such as bureaucracies, should be designed to minimize the effects of self-seeking (or, as economists say, ‘rent-seeking’) behaviour on the part of bureaucrats (Brennan and Buchanan, 1988). So far as judicial review is concerned, some public choice theorists see the courts as being in a good position to counter self-interested behaviour in the executive on the basis that the judicial process is less susceptible than either legislative or administrative processes to manipulation by individuals and groups seeking their own aggrandisement. In Chapter 14 Frank Cross challenges this faith in the judicial process. Even leaving aside the question of whether judges are as self-seeking as legislators and bureaucrats, Cross argues that the dynamics of the judicial process render it incapable of correcting the effects of self-seeking behaviour in and on the other branches of government because of its own accessibility to rent-seekers. Another key concept in economic theory which is of relevance to administrative law is that of agency cost. Agency cost theory is concerned with situations where one person or group authorizes another person or group to act on their behalf. In societies that subscribe to democratic ideals, the public domain is thick with agency relationships of various sorts. The legislature is agent of the people, the executive is agent of the legislature and civil servants are agents of ministers of state. Such relationships confer benefits on the respective principals, but they also impose costs. One of those costs, so public choice theory tells us, is the risk of rent-seeking behaviour on the part of the agent at the expense of the principal. In Chapter 15 William Bishop interprets administrative law as being designed to optimize the balance between costs and benefits that accrue to principals in such relationships.

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One possible reaction to the institutional design implications of public choice theory is to subject government activity to market or market-type discipline by privatizing public utilities, introducing competition into the public procurement process, constructing ‘internal markets’ within the public sector (see, for example, Allen, 1995) and replacing traditional hierarchical political structures with quasi-contractual arrangements and financial accounting responsibilities.8 Such techniques have been adopted in many countries in the past 20 years or so, and they have generated considerable concern amongst public lawyers, especially in terms of accountability (see Austin, 1997). The relationships between developments such as these and traditional public law values is explored by Mark Freedland in Chapter 16 and in Freedland (1994). In Chapter 17 Colin Scott suggests that any weakening of the traditional public law constraints on ‘the exercise of power which is broadly public in character’ is counterbalanced by the advent of new and less formal modes of accountability that coexist with the older forms in dense networks of mutually reinforcing ‘checks and balances’. Other noteworthy contributions to this debate include Vincent-Jones (1999), Collins (1999, ch. 13) and Hood et al (1999, esp. ch. 9). A proposition underlying much of this literature is that the conduct of ‘public’ functions and the provision of ‘public’ services should be regulated by ‘public’ law. Recent developments are interpreted as having the purpose (or at least the effect) of removing the performance of public functions and the delivery of public services from the purview of public law. But in some cases at least, it seems more likely that what lies at the bottom of disagreements about the proper way to regulate the performance of particular functions and the delivery of particular services is a difference of opinion about whether those functions and services are properly characterized as public or private. The issues debated in Chapters 16 and 17 have received much less attention in the USA than they have in the UK and Europe. This may be explained partly by the fact that major public utilities that were, for a long time, publicly owned in the UK were privately owned in the USA (see Aman, 1997; Beerman, 1997). The debates provoked by the advent of Reaganomics in the 1980s focused more on deregulation (see, for example, Garland, 1985) than on privatization and contractualization. But things are starting to change, as Chapter 18 by Jody Freeman attests (see also Freeman, 2000).

Liability As we saw earlier, one of the most distinctive differences between administrative law in common law systems, on the one hand and in French law, on the other, concerns the liability of government bodies for harm inflicted on citizens. In French law, ‘public liability’ is the subject of a doctrinally and institutionally separate and distinct legal regime, whereas in common law systems it is governed by the same rules that apply as between citizen and citizen, subject to certain modifications. In Chapter 19 David Cohen argues for the rejection of the private law model by reference to the interests protected by private law. Chapter 20 is a brief response by William Bishop. Cass Sunstein’s challenge to the private law model in Chapter 21 (which is a review of Schuck (1983)) focuses more on the centrality of the damages remedy in that model. Damages is also the concern of Chapter 22 in which I argue that the private law model has, in fact, already been significantly undermined.

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Addenda Discretion One of the topics dealt with in the first volume that has been excluded from this one on grounds of lack of space is that of discretion. The nature, exercise and control of discretion is of such fundamental concern to administrative lawyers that I feel it incumbent on me to provide a few references to important literature. Baldwin and Hawkins (1984) provide a careful reassessment of K.C. Davis’s highly influential approach. Robert Goodin (1986) focuses on discretion in the administration of welfare benefits, analysing certain problems that he considers to be inherent in discretion and making a radical suggestion for overcoming them. Edward Rubin’s (1997) approach is also radical. He argues for a reconceptualization of the negative concept of discretion (Ronald Dworkin’s famous ‘hole in the doughnut’) in terms of the positive ideas of supervision and policy-making. His argument is that the negative concept ‘serves no real purpose in describing modern government, or in devising new solutions to the serious issues we confront’ (Rubin, 1997, p. 1336). Rubin’s approach may be seen to bring us back full circle to the discussion at the beginning of this Introduction of two concerns of administrative law - one with the way in which government business gets done, and the other with controlling the use of governmental power. The negative concept of discretion finds its most natural place in the latter context, whereas supervision and policy-making are central issues in the former context. The Constitutional Basis o f Judicial Review Finally, brief mention must be made of a vigorous debate in the UK about the constitutional basis of judicial review. The traditional view is that this is to be found in the ultra vires principle, according to which the role of the courts is to enforce statutory limits on executive power. Dawn Oliver (1987) challenges this view on the basis that not all executive power is statutory. The legal source of so-called ‘prerogative’ power is common (that is, judge-made) law, not statute; and Harris (1992) has identified a ‘third source’ of governmental power by analysis of the application to government of the principle that conduct which is not prohibited by law is lawful. Oliver’s essay has recently provoked an outpouring of scholarly writing, much of which is collected in Forsyth (2000). An important implication of Oliver’s argument is that judicial review needs support from non-statutory principles. Dyzenhaus (1998) finds these in ideas of ‘democracy’ and in ‘process’ values. This approach, which is reminiscent of John Hart Ely’s theory of constitutional judicial review of legislation (Ely, 1980), is developed in Dyzenhaus (2000). This process-based account is challenged by T.R.S. Allan (2000), the basic theme of whose work (see Allan, 1998 and Chapter 17 in the first volume) is that constitutional and administrative law must both ultimately be grounded in ‘substantive’ notions of ‘fair treatment of individuals’ and ‘equality, in the sense of reasoned consistency, excluding arbitrary discrimination’ (Allan, 2000, p. 415). The role of ‘individual rights’ as an underpinning for judicial review is explored by Jeffrey Jowell (2000). In an earlier article (Jowell and Lester, 1987) it was approvingly suggested that certain ‘independent principles of justice’ are inherent in the grounds of judicial review of discretion. One of the most significant developments in English public law since this essay was written is the enactment of the Human Rights Act 1998. Jowell (2000) argues that this will transform judicial review of administrative action by

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giving it ‘constitutional’ status. He rejects the claim that ‘judicial review’ will, as a result, be turned into ‘merits review’. The details of this debate about the constitutional foundations of judicial review are a product of the particular institutional history of the UK and, most notably, the role of the monarch in government. There is no parallel literature in the USA. This is not to say that none of the issues covered by the debate arises in that system. For instance, sensitivity to the ‘third source’ of executive power has generated important legal developments regarding, and much scholarly interest in, ‘informal’ rule-making (see Chapter 8 in the first volume). A useful discussion of this topic from a US perspective is Asimow (1985).

Notes 1 2 3 4 5 6 7

8

Perhaps the leading US academic proponent of aggressive judicial review is Cass Sunstein who finds support for his approach in the political theory of ‘Madisonian republicanism’ (Sunstein, 1985). Another valuable review of Edley’s book is Rose-Ackerman (1990). For a different perspective on negotiated rule-making see Rose-Ackerman (1994). For a very useful discussion of review of rule-making on procedural grounds in Australia and the UK see Craven (1988). A helpful US discussion of administrative adjudication can be found in Schwartz (1996). See Loveland (1995) for a collection of essays about American influences on UK public law. Lindseth (1996) (a review of Rose-Ackerman (1995)) offers a contrasting view to that of RoseAckerman about the relative merits of the US and German approaches. For a discussion o f the legal framework of some aspects of policy-making in the UK, see Cane (1998). Taggart (1997) is an important set of essays on the implications of such developments for administrative law.

References Ackerman, B.A. and Hassler, W.T. (1981), Clean Coal, Dirty Air, New Haven, CT: Yale University Press. Allan, T.R.S. (1998), ‘Fairness, Equality, Rationality: Constitutional Theory and Judicial Review’, in C. Forsyth and I. Hare (eds), The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade, Oxford: Oxford University Press, pp. 15-37. Allan, T.R.S. (2000), ‘The Rule of Law as the Foundation of Judicial Review’, in C. Forsyth (ed.), Judicial Review and the Constitution, Oxford, pp. 413-19. Allen, P. (1995), ‘Contracts in the National Health Service Internal Market’, Modern Law Review, 58, pp. 321—42. Allison, J.W.F. (1996), A Continental Distinction in the Common Law: A Historical and Comparative Perspective on English Public Law, Oxford: Oxford University Press. Aman, A.C. jr (1997), ‘Administrative Law for a New Century’, in M. Taggart (ed.), The Province of Administrative Law, Oxford: Hart Publishing, pp. 90-117. Asimow, M. (1985), ‘Non-legislative Rule-Making and Regulatory Reform’, Duke Law Journal, pp. 381 — 426. Austin, R. (1997), ‘Administrative Law’s Reaction to Changing Concepts of Public Service’, in P Leyland and T. Woods (eds), Administrative Law Pacing the Future: Old Constraints and New Horizons, London, pp. 1-34. Baldwin, J., Wikeley, N. and Young, R. (1992), Judging Social Security: The Adjudication of Claims for Benefit in Britain, Oxford: Oxford University Press. Baldwin, R. and Hawkins, K. (1984), ‘Discretionary Justice: Davis Reconsidered’, Public Law, pp. 570-99.

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Beerman, J.M. (1997), T he Reach of Administrative Law in the United States’, in M. Taggart (ed.), The Province of Administrative Law, Oxford: Hart Publishing, pp. 171-95. Brennan, G. and Buchanan, J.M. (1988), ‘Is Public Choice Immoral? The Case for the “Nobel” Lie’, Virginia Law Review, 74, pp. 179-89. Bridges, L., Meszaros, G. and Sunkin, M. (1995), Judicial Review in Perspective, London: Cavendish Publishing. Bridges, L., Meszaros, G. and Sunkin, M. (2000), ‘Regulating the Judicial Review Caseload’, Public Law, pp. 651-70. Brown, L.N. and Bell, J.S. (1998), French Administrative Law (5th edn), Oxford: Oxford University Press. Cane, P. (1998), ‘The Constitutional and Legal Framework of Policy-Making’, in C. Forsyth and I. Hare (eds), The Golden Metwand and the Crooked Cord: Essays on Public Law in Honour of Sir William Wade, Oxford: Oxford University Press, pp. 39-64. Cane, P. (2000), ‘Merits Review and Judicial Review: The A AT as Trojan Horse’, Federal Law Review, 28, pp. 213—44. Cass, R.A. (1986), ‘Allocation of Authority within Bureaucracies: Empirical Evidence and Normative Analysis’, Boston University Law Review, 66, pp. 1-45. Choo, R. (2000), ‘Judicial Review of Negotiated Rulemaking: Should Chevron Deference Apply?’, Rutgers Law Review, 52, pp. 1069-120. Collins, H. (1999), Regulating Contracts, Oxford: Oxford University Press. Craven, G.J. (1988), ‘Legislative Action by Subordinate Authorities and the Requirement of a Fair Hearing’, Melbourne University Law Review, 16, pp. 569-602. Cross, F.B. and Tiller, E.H. (1998), ‘Judicial Partisanship and Obedience to Legal Doctrine: Whistleblowing on the Federal Courts of Appeals’, Yale Law Journal, 107, pp. 2155-75. Dotan, Y. (1997), ‘Should Prosecutorial Discretion Enjoy Special Treatment in Judicial Review? A Comparative Analysis of the Law in England and Israel’, Public Law, pp. 513-31. Dyzenhaus, D. (1998), ‘Reuniting the Brain: The Democratic Basis of Judicial Review’, Public Law Review, 9, pp. 98-110. Dyzenhaus, D. (2000), ‘Form and Substance in the Rule of Law: A Democratic Justification for Judicial Review?’, in C. Forsyth (ed.), Judicial Review and the Constitution, Oxford: Hart Publishing, pp. 141-72. Edley, C.F. jr (1990), Administrative Law: Rethinking Judicial Control of Bureaucracy, New Haven, CT: Yale University Press. Ely, J.H. (1980), Democracy and Distrust: A Theory of Judicial Review, Cambridge, MA: Harvard University Press. Fiss, O.M. (1984), ‘Against Settlement’, Yale Law Journal, 93, pp. 1073-90. Forsyth, C. (ed.) (2000), Judicial Review and the Constitution, Oxford: Hart Publishing. Freedland, M. (1994), ‘Government by Contract and Public Law’, Public Law, pp. 86-104. Freeman, J. (2000), ‘The Private Role in Public Governance’, New York University Law Review, 75, pp. 543-675. Garland, M.B. (1985), ‘Deregulation and Judicial Review’, Harvard Law Review, 98, pp. 505-91. Genn, H. (1994), ‘Tribunal Review o f Administrative Decision-Making’, in G. Richardson and H. Genn (eds), Administrative Law and Government Action, Oxford: Oxford University Press, pp. 249-86. Goodin, R.E. (1986), ‘Welfare, Rights and Discretion’, Oxford Journal of Legal Studies, 6, pp. 232-61. Harlow, C. and Rawlings, R. (1984), Law and Administration, London: Butterworths. Harlow, C. and Rawlings, R. (1997), Law and Administration (2nd edn), London: Butterworths. Hood, C., Scott, C., James, O., Jones, G. and Travers, T. (1999), Regulation Inside Government: WasteWatchers, Quality Police and Sleaze-Busters, Oxford: Oxford University Press. Jowell, J. (2000), ‘Beyond the Rule of Law: Constitutional Judicial Review’, Public Law, pp. 671-83. Jowell, J. and Lester, A. (1987), ‘Beyond Wednesbury: Substantive Principles o f Judicial Review’, Public Law, pp. 368-82. Lawson, G. (1994), ‘The Rise and Rise of the Administrative State’, Harvard Law Review, 107, pp. 1231— 54. Lindseth, PL. (1996), ‘Comparing Administrative States: Susan Rose-Ackerman and the Limits of Public Law in Germany and the United States’, Columbia Journal of European Law, 2, pp. 589-618.

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Loveland, I. (1995), Housing Homeless Persons: Administrative Law and the Administrative Process, Oxford: Oxford University Press. Mashaw, J.L. (1997), Greed, Chaos and Governance: Using Public Choice to Improve Public Law , New Haven, CT: Yale University Press. Mullen, T., Pick, K. and Prosser, T. (1996), Judicial Review in Scotland, Chichester: Wiley. Oliver, D. (1987), ‘Is the Ultra Vires Rule the Basis of Judicial Review?’, Public Law, pp. 543-69. Peay, J. (1989), Tribunals on Trial, Oxford: Oxford University Press. Pierce, R.J. (1988), ‘Chevron and its Aftermath: Judicial Review of Agency Interpretations of Statutory Provisions’ , Vanderbilt Law Review, 41, pp. 301-14. Pierce, R.J. (1999), ‘Is Standing Law or Politics\ North Carolina Law Review, 11, pp. 1741-89. Richardson, G. and Machin, D. (2000), ‘Judicial Review and Tribunal Decision Making: A Study of the Mental Health Review Tribunal, Public Law, pp. 494-514. Rose-Ackerman, S. (1988), ‘Progressive Law and Economics and the New Administrative State’, Yale Law Journal, 98, pp. 341-68. Rose-Ackerman, S. (1990), ‘Triangulating the Administrative State’, California Law Review, 78, pp. 1415— 26. Rose-Ackerman, S. (1994), ‘Consensus versus Incentives: A Sceptical Look at Regulatory Negotiation’, Duke Law Journal, pp. 1206-20. Rose-Ackerman, S. (1995), Controlling Environmental Policy: The Limits of Public Law in Germany and the United States, New Haven, CT: Yale University Press. Rubin, E.L. (1997), ‘Discretion and Its Discontents’, Chicago-Kent Law Review, 12, pp. 1299-336. Schuck, P. (1983), Suing Government: Citizen Remedies for Official Wrongs, New Haven, CT: Yale University Press. Schuck, PM. and Elliott, E.D. (1990), ‘To the Chevron Station: An Empirical Study of American Administrative Law’, Duke Law Journal, pp. 984-1077. Schwartz, B. (1996), ‘Adjudication and the Administrative Procedure Act’, Tulsa Law Review, 32, pp. 20319. Shapiro, M. (1988), Who Guards the Guardians? Judicial Control of Administration, Athens, Ga: University of Georgia Press. Snell, R. (2000), ‘The Kiwi Paradox - A Comparison of Freedom of Information in Australia and New Zealand’, Federal Law Review, 28, pp. 575-616. Sunkin, M. and Le Sueur, A.P (1992), ‘Can Government Control Judicial Review?’, Current Legal Problems, 44, pp. 161-83. Sunstein, C.R. (1985), ‘Interest Groups in American Public Law’, Stanford Law Review, 38, pp. 29-87. Sunstein, C.R. (1989), ‘On the Costs and Benefits of Aggressive Review of Agency Action’, Duke Law Journal, pp. 522-37. Sunstein, C.R. (1990), ‘Law and Administration after Chevron , Columbia Law Review, 90, pp. 2071—

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Sunstein, C.R. (1991), ‘Administrative Substance’, Duke Law Journal, pp. 607-46. Taggart, M. (ed.) (1997), The Province of Administrative Law, Oxford: Hart Publishing. Vincent-Jones, P. (1999), ‘The Regulation of Contractualisation in Quasi-Markets for Public Services’, Public Law, pp. 304-27. Woodhouse, D. (1997), In Pursuit of Good Administration: Ministers, Civil Servants and Judges, Oxford: Oxford University Press. Ziamou, T. (1999), ‘New Process Rights for Citizens? The American Tradition and the German Legal Perspective in Procedural Review of Rule-Making’, Public Law, pp. 726-42.

Part I G rou n d s o f J u d icia l R e v ie w

[1] QUESTIONS OF LAW T imothy E ndicott .*

Here is a question of law, if your Lordships please to treat it as such. Lord Denning to the House of Lords1 And be it moon, or sun, or what you please: And if you please to call it a rush-candle, Henceforth I vow it shall be so for me. Katharine to Petruchio2 Lord Denning did not take an analytical approach to identifying questions of law, any more than Katharine took an analytical approach to identifying the moon. They both sought a characterisation of the phenomena that would do what they needed done—they took a pragmatic approach. A consensus has recently emerged among academic commentators on administrative law: that the courts should take a pragmatic approach to identifying questions of law. According to the consensus, it is impossible or useless or dangerous to ask what questions are questions of law. Judges should ask, instead, what questions it would be useful to treat as questions of law. The consensus is that a pragmatic approach to identifying questions of law is preferable to an analytical approach. I will argue that a sound analytical approach is possible, and is capable of being useful, and is incapable of being dangerous. If the argument succeeds, it will mean that administrative law scholars need to reconceive the distinction between analytical and pragmatic reasoning. The problem of identifying questions of law is introduced in section I using the House of Lords decision in Cozens v. Brutus.3 The problem arises in several branches of the law; it is worth pointing out some of those branches, if only to see the special difficulties that the problem creates in administrative law (section II). Part of the argument of this article is that it is worth paying closer attention to the techniques that the judges have developed to cope with the problem (section EH). Those techniques are diverse and occasionally confused, but a common thread has emerged that supports the main argument of this article. The common thread is the principle that a question of application of statutory language is a question of law when the law requires one answer to it. Section IV describes the academic consensus in favour of a pragmatic approach to the problem, and

1 Griffiths (Inspector of Taxes) v. J. P. Harrison (Watford) Ltd [1963] A.C. 1. 2 Shakespeare, The Taming o f the Shrew IV, v. 13-15. 3 [1973] A.C. 854.

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section V comments on the nature of analytical and pragmatic approaches to problems. The main argument of the article is presented in section VI, and summarised at the end of that section. The argument presents an account of analysis as resting on normative judgments, and concludes that the common thread in the cases corresponds to a sound analytical approach to the problem. Sections VII and VIII comment on the extent to which the proposed solution is at odds with the academic consensus, and is at one with the reasoning of the judges. I. T he Problem

On a June afternoon at Wimbledon, 1971, Dennis Brutus invaded Court Number 2. Brutus was an anti-apartheid activist. He wanted to disrupt a doubles match featuring a South African player, Cliff Drysdale. Brutus blew a whistle, and he threw leaflets, and he sat down on the court. The police dragged him away, and charged him under the Public Order Act 1936, with the offence of using “insulting” behaviour that was likely to occasion a breach of the peace. The magistrates dismissed the charge against Brutus. They decided that his behaviour had not been insulting. The Divisional Court allowed an appeal by the police, but the House of Lords restored the magistrates’ decision. Lord Reid did not just agree with the magistrates. He thought the Divisional Court should not have heard the appeal. They only had jurisdiction to hear an appeal on a question of law. Lord Reid held that the question of whether Brutus’s behaviour was insulting was not a question of law: “The meaning of an ordinary word of the English language,” he said, “is not a question of law”.4 Was there a question of law at issue in the police appeal? We can see three questions the magistrates had to answer: 1. Question of Fact: “What did Brutus do on Court Number 2?” The magistrates had the testimony of the police witnesses to help them answer that question. 2. Question of Law: “What is the offence?” The magistrates had the Public Order Act to help them answer that question. When they read section 5, they found that Brutus’s behaviour had to have been insulting. And that raises the third question, which we can call a “question of application” : 3. Question of Application:. “Was Brutus’s behaviour insulting?”

4 [1973] A.C. 854 at p. 861.

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The magistrates dismissed the information against Brutus because their answer to Question 3 was “no”. Then the judges in the Divisional Court had to address a new question: did the Divisional Court have the power to reverse the magistrates’ decision? It could only interfere on questions of law. So look back at the three questions the magistrates faced. Question 1 is not a question of law.3 *5 Question 2 is a question of law, and if the magistrates had, e.g. said that the Act should be read to prohibit any inconsiderate behaviour, the Divisional Court could have reversed their decision. But the magistrates simply read it as it was written—to say that there was no offence unless Brutus’s behaviour was insulting. So they seem not to have erred on a question of law, unless Question 3 is a question of law. What about the vexed Question 3, the question of application? Is that a question of fact, or a question of law? Or is it some other animal? The judges of the Divisional Court had to solve that problem (I will call it “the problem”) in order to decide if they could interfere with the magistrates’ decision. II. T he S cope of the P roblem The distinction between law and fact can be important in a variety of legal contexts: mistakes of fact and mistakes of law may be treated differently in criminal law, and mistakes or misrepresentations of fact and of law may be treated differently in contract law. Rules of pleading typically require a party to plead facts, and prohibit the pleading of law. But the most common use of the notion of questions of law is to distribute decision-making power and responsibility. It is the standard device that common law systems have used to order relations between two decision-makers. The obvious example is jury trial: judges answer ques­ tions of law, and juries answer questions of fact.6 But the doctrine of precedent is an example too. The common law distributes decision-making power by enabling the court that set the precedent to bind a later court on questions of law, but not on questions of fact. The final example, and the most important for our purposes, is that courts reviewing the decisions of other decision-makers are often given power to interfere on questions of law, but not on questions of fact. Arbitrators are one such decision-maker.7 But most cases arise in three areas on the fringes of administrative law:

3 The court may interfere with the tribunal’s answer to question 1, but not simply on the ground that it was mistaken: see below section 3.9. See also Timothy Jones, “Mistake of Fact in Administrative Law” [1990] P.L. 507. 6 For qualifications on this generalisation and for a discussion of the problem in the context of jury trials see A. A. S. Zuckerman, The Principles o f Criminal Evidence (1989), pp. 24-32. 7 Arbitration Act 1979, s. 1(2) (appeal to a court on a “question of law arising out of an award”). See Vitol SA v. No reIf Ltd [1996] A.C. 800.

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appeals from magistrates (as in Brutus), and from the Employment Appeals Tribunals,8 and (in vast numbers) from the tax commissioners.9 The same distinction also governs the scope of review in the core areas of admin­ istrative law: dozens of statutes provide for appeals on “a question of law” .101 Most dramatically, the judges have developed their own supervisory review of administrative decision making so that they can reverse an administrative decision on a question of law without a statute conferring the power to do so. Since Anisminic,u the judges have refined jurisdic­ tional review to such a pitch of sophistication that the word “jurisdiction” is no longer needed, and a court will simply substitute its view for that of the administrative decision-maker on any question of law. We can call this form of review the “Page doctrine”, after its most unequivocal assertion in the House of Lords: . . . in general any error of law made by an administrative tribunal or inferior court in reaching its decision can be quashed for error of law.12 Under the Page doctrine, review for error of law is its own rationale. Why is judicial review available against an error of law? Because it is an error of law. The remarkable feature of the Page doctrine is the way in which it assimilates supervisory review to appellate review, at least in this respect: that supervisory review (generally) and statutory appeals (typically) are both available to correct errors of law.13 It is a commonplace in the lore of administrative law that an appeal on a question of law is to be distinguished

8 Employee Protection (Consolidation) Act 1978 s.136; Trade Union and Labour Relations (Consolida­ tion) Act 1992, s.291(2). 9 Appeal may be brought from the General or Special Commissioners to a court on a question of law: Taxes Management Act 1970, s.56. 10 e.g. Child Support Act 1991, s.25 (appeal from Child Support Commissioner to a court); Social Security Administration Act 1992, s.24 (appeal from Commissioners to a court); Asylum and Immigration Appeals Act 1993, s.9 (appeal from Immigration Appeal Tribunal to a court). Appeals can be brought from twelve types of tribunals (including rent assessment tribunals and VAT tribunals) under the Tribunals and Inquiries Act 1992 by a party “dissatisfied in point of law” (s .ll and Sched. 1). 11 Anisminic Lid v. Foreign Compensation Commission [1969] 2 A.C. 147. 12 R. v. Lord President o f the Privy Council, ex p. Page [1993] A.C. 682, per Lord Browne-Wilkinson at p. 702, drawing on remarks by Lord Diplock in Re Racal Communications Ltd [1981] A.C. 374 and O ’Reilly v. Mackman [1983] 2 A.C. 237. Cf. Lord Slynn in Page: “certiorari is now available to quash errors of law in a decision” (at p. 706). None of those decisions turns on the courts’ general power to review for error of law, but there is no doubting the authority of such straightforward, consistent statements in the House of Lords. 13 Thus Lord Griffiths supported the majority view in Page, that university visitors have a special exemption from review for error of law, by saying, “ . . . to admit certiorari to challenge the visitor’s decision on the ground of error of law will in practice prove to be the introduction of an appeal by another name” : [1993] A.C. 682 at p. 674. The implication is that the House of Lords should not introduce such a form of appeal. Lord Griffiths did not comment on the propriety of introducing “an appeal by another name” from decision-makers other than university visitors.

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from supervisory review;14 the House of Lords has partly abolished the distinction.15 This article will focus on the problem in the context of administrative law. The argument may have implications for jury trial and for the doctrine of precedent. But in those contexts matters are somewhat more straight­ forward. In both, the decision-maker with power to decide questions of law acts first. In jury trials, the judge directs the trier of fact. Difficult issues arise as to how much the judge should tell the jury, but those issues get resolved without conceptual headaches, by rules governing directions (indeed, the problem is often addressed by talking of “questions for the judge” and “questions for the jury” rather than “questions of law” and “questions of fact” 16). In the doctrine of precedent, as in jury trial, the decision-maker with power to bind on questions of law acts first. And in this context the need to interpret previous cases and the power to distinguish them provide very flexible techniques for addressing the problem: it is the decision-maker that is bound on questions of law that decides what answers the first decision-maker has given to questions of law. In judicial review,17 the process is reversed: the decision-maker with power to bind on questions of law makes its decision after the other decision-maker has already given a decision. Imagine that a jury gave its verdict first, without instruction, and then a judge had to decide whether they had erred in law. Or imagine that the doctrine of precedent worked backwards, with the second court passing judgment on the legal validity of the previous decision. These topsy-turvy scenarios point out what is difficult about distribution of decision-making power in judicial review: it is an institutionalised form of second guessing.18

14 Sir William Wade and Christopher Forsyth (Administrative Law (7th ed., 1994) (“Wade and Forsyth”)) retain the claim that appellate review concerns the merits of the tribunal’s decision while supervisory review concerns its legality (at pp. 38, 954). But appellate review on a question of law only concerns the decision’s legal merits; and under the Page doctrine, reviewing the legal merits of a decision is reviewing its legality. 15 Remains of the distinction between supervisory review and appeal are: (i) procedures differ; (ii) it may be that a party entitled to an appeal on a question of law is sometimes unable to raise jurisdictional issues (but see Wade and Forsyth at pp. 954-955 for an argument that this is never the case); (iii) statutory provisions may give the court powers that it does not have in supervisory review to substitute its own remedy for that of the tribunal (see Peter Cane, Introduction to Administrative Law (3rd ed., 1996) (“Cane”), at pp. 8—10); and (iv) although the Page doctrine sets the same standard of review for both, judges may incline to exercise more self-restraint in supervisory review. 16 So, for instance, whether particular words are “defamatory” is a question for the jury, and the courts reach that conclusion without agonizing over whether that is a question of law or of fact. See, e.g. Botham v. Khan, The Times, July 15, 1996, CA. 17 Taken in the widest sense to include review of arbitrators’ decisions and statutory appeals on questions of law as well as supervisory review under the Page doctrine. 18 The closest analogue of the judicial review situation is appellate review within the hierarchy of superior courts. But there the notion of questions of law is not used to determine whether the appeal court can interfere: although the Court of Appeal is circumspect about interfering with conclusions of fact, it has the power to do so. As a result, there is no pressing need to identify questions of law. See R.S.C., Ord. 59, r. 10(3).

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So in what follows I will concentrate on the problem in administrative law, for two reasons: because that is where the interesting difficulties arise, and because the problem has such far-reaching practical implications for the scope of judicial review, especially under the Page doctrine. For convenience I will call the decision-maker whose decision is under review the “tribunal” , and the reviewing decision-maker the “court”.19 III. The Judges Looking at the devices courts have used to address the problem is like looking into the average toolbox. There is a lot of clutter that could have been cleared out long ago. There are one or two baffling gadgets with no readily identifiable function. And there are a few old, sturdy, and serviceable tools that do all the work. It would be a mistake to think that the toolbox is useless, just because it is messy. At first glance the cases look inconsistent, as if the judges were addressing the problem ad lib. Some suggest that questions of application are questions of law,20 some suggest that questions of application are questions of fact,21 and a much more numerous class of cases concludes that a question of application may be a question of fact or a question of law, depending on a perplexing variety of flexible distinguishing criteria. We can simplify matters first by pointing out that cases of the first kind are few and not recent.22 And no case of the second kind is consistent with itself. Puhlhofer is an example. The applicants were refused housing assistance on the ground that they were not homeless, because they already had “accommodation” (for their family of four, the applicants had one room in a bed and breakfast, with no cooking or washing facilities). Lord Brightman said that “What is properly to be regarded as accommodation is a question of fact to be decided by the local authority. There are no rules”.23 But that statement was too general: Lord Brightman admitted in his next breath that the court could interfere in some conceivable cases—on the very question of what is properly to be regarded as accommodation: Clearly some places in which a person might choose or be constrained to live could not properly be regarded as accommodation at all; it 19 In fact, the decision-maker whose decision is under review may be a court, or an administrative agency other than a tribunal, and the reviewing decision-maker may be a tribunal (e.g. the Employment Appeals Tribunal can hear appeals from Industrial Tribunals on questions of law), or a commissioner, or even the Secretary of State. 20 Farmer v. Cotton’s Trustees [1915] A.C. 922; Woodhouse v. Peter Brotherhood Ltd [1972] 2 Q.B. 520 at p. 536; Pearlman v. Keepers and Governors of Harrow School [1979] Q.B. 56 per Lord Denning M.R.; A.C.T. Construction Ltd v. Customs and Excise Commissioners [1981] 1 W.L.R. 49, CA, per Lord Denning M.R. at p. 54. 21 E.g. Simmons v. Heath Laundry Co. [1910] 1 K.B. 543 per Cozens-Hardy M.R., Fletcher Moulton and Buckley L.JJ. (doubted by Ackner L.J. in O ’Kelly v. Trusthouse Forte Pic [1984] 1 Q.B. 90 at pp. 113,114); R. v. Hillingdon LB.C., ex p. Puhlhofer [1986] 1 A.C. 484 at p. 517. 22 But see the discussion of Lord Templeman’s speech in Smith v. Abbott, at n. 33 below. 23 [1986] 1 A.C. 484 at p. 517.

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would be a misuse of language to describe Diogenes as having occupied accommodation within the meaning of the Act.24 That, at least, is a rule. Suppose that Diogenes applied to his local authority for housing assistance, and the local authority said, “you are not homeless, because you have a barrel available to you as accommodation.” The local authority’s decision would be reversed for error on a question of law. The question of the application of the word “accommodation” was a question of fact in Puhlhofer. But the question of application of the same word would be a question of law if the applicants lived in a barrel. Similar conclusions provide the explicit common thread in the numerous cases that hold that a question of application may be a question of law or a question of fact. According to the courts, the question of the application of a single statutory term can be a question of fact in one case, and a question of law in another. This common thread in the cases needs explaining. It might be thought that we have to identify the question whether behaviour is insulting as a question of law or a question of fact, so that either every decision of the magistrates applying section 5 of the Public Order Act 1936 was subject to review, or none was. But whether behaviour is insulting is not actually a question; it is a fragment of a question (try asking yourself, “is behaviour insulting?”). The question that had to be identified as a question of fact or a question of law in Brutus v. Cozens was this: “was Brutus’s behaviour insulting?” (See “Question 3”, above.) Judges (like Lord Reid) and academic commentators sometimes claim or assume that (analytically) either every question of the application of, e.g., section 5 is a question of law, or every question of its application is a question of fact. But we shall see that the mainstream of judgments support the view (i) that the question of the application of section 5 may be a question of fact in one case, and a question of law in another case, and (ii) that the cases in which the question of application is a question of law are cases in which the law requires one answer. This common feature will show itself again and again when we examine the variety of devices in the judicial toolbox. (a) Questions only a trained lawyer can answer One of several tools that Lord Denning has devised is to ask whether “the correct conclusion to be drawn from the primary facts requires, for its correctness, determination by a trained lawyer” .25 If the conclusion “can as

24 [1986] 1 A.C. 484 at p. 517. 25 British Launderers’ Research Association v. Borough o f Hendon Rating Authority [1949] 1 K.B. 462, C.A., at p. 472. Primary facts are “facts which are observed by witnesses and proved by oral testimony” (at p. 471).

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well be drawn by a layman”, it is a conclusion on a question of fact. What can Lord Denning have expected of trained lawyers? He gives instances of what would make a trained lawyer necessary, but they do not help: “because it involves the interpretation of documents or because the law and the facts cannot be separated, or because the law on the point cannot properly be understood or applied except by a trained lawyer” . The first is irrelevant to the problem (unless statutes are “documents”), the second is baffling, and the third is redundant. The problem is that most cases on questions of law involve the application of straightforward (though vague) statutory expressions, in contexts that the tribunal is familiar with: “insulting”, “accommodation”, “structural alterations”, “maintenance”, “trade” , “plant”, and so on. The application of such terms is difficult in some cases, but the difficulties do not call for a trained lawyer. They call for good sense and attention to the context. At least concerning questions of the application of statutory provisions such as these, what is at stake is not whether a trained lawyer is better at applying the expression than a layperson, but whether the court ought to substitute its judgment for that of the tribunal. In any case, the courts have not followed Lord Denning’s lead in this case: the trained lawyer test is defunct. (b) Questions of application of ordinary English words are questions of fact Related to the trained lawyer test is the technique that Lord Reid contributed in Brutus’s case: “The meaning of an ordinary word of the English language is not a question of law” .26 This is an unstable test—not because there is no such thing as ordinary words with ordinary meanings, but because ordinary words can be used in special senses, and the question can always arise whether that is what Parliament has done. Lord Reid himself made that clear.27 Thus the ordinary word test has been shaken by Lord Scarman’s speech in R. v. Barnet L.B.C., ex p. Shah: Though the meaning of ordinary words is, as Lord Reid observed in Cozens v. Brutus . . . , a question of fact, the meaning to be attributed to enacted words is a question of law, being a matter of statutory interpretation.28 Moreover, consider what would have happened if the magistrates had convicted Brutus. Lord Reid had good reason for his view that Brutus’s 26 [197°1 A.C. 854 at p. 861. 27 In^iiediately after the statement that the meaning of an ordinary word is not a question of law, he wrote that “The proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense the court will determine in other words what that unusual sense is”. 28 [1983] 2 A.C. 309 atp. 341. Cf R. v. Poplar Coroner, exp. Thomas [1993] Q.B. 610 per Simon Brown L.J. at p. 630: “Cozens v. Brutus. . . , in short, seems to me of limited value in this case: even ordinary words can have more than one usual sense and be capable of differing applications depending upon the particular context in which they are found.”

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behaviour was not insulting, and it seems (though he does not discuss it) that he would have reversed the magistrates if they had convicted. Yet if they had convicted, they would have done so simply by erring on a question of the application of an ordinary English word. What’s more, Lord Reid did not say that the magistrates’ application of an ordinary word is unreviewable: he actually offered a reasonableness test.29 That test would have given him a technique for reversing the magistrates if they had convicted. Which goes to show that, even in cases where ordinary words are used in an ordinary sense, we cannot accept Lord Reid’s statement that the meaning of ordinary words is not a question of law, without the qualification that the tribunal errs on a question of law if it applies the term unreasonably. So Brutus itself suggests that we can dispense with the notion of ordinary words altogether and use (something like) a reasonable­ ness test (see section 3.8, below). (c) Mixed questions of fact and law Here is one of the baffling gadgets in the judicial toolbox: questions of application are often called mixed questions of fact and law.30 The notion has crept into the statute books, though only as part of an extravagant device for creating a power to hear appeals on any question.31 The nature of the mixture is unexplained, and it seems that “mixture” is actually a rather unhelpful low-voltage metaphor: a question of application does not mix fact and law, it asks the decision-maker to apply the law to the facts. It has sometimes been supposed that a court cannot entertain mixed questions of fact and law: . . . the appeal tribunal has no jurisdiction to consider any question of mixed fact and law until it has purified or distilled the mixture and extracted a question of pure law.32 But the contrary view is current in the House of Lords. Considering whether journalists read newspapers “in the performance o f ’ their duties, Lord Mustill simply held that the question was “one of mixed fact and law which the court is entitled to review” .33

29 [1973] A.C. 854 at pp. 861-862. Reasonableness tests are discussed below, section 3.8. 30 Wade and Forsyth trace the phrase back as far as Johnstone v. Sutton (1785) 1 T.R. 510 at p. 545. 31 Criminal Appeal Act 1968, s. 1(2). 32 O ’Kelly v. Trusthouse Forte P.LC. [1984] Q.B. 90, per Lord Donaldson M.R. at p. 123. 33 Smith (Inspector o f Taxes) v. Abbott [1994] 1 All E.R. 673, at p. 691; Lord Jauncey of Tullichettle concurred in this characterisation of the question. Lord Browne-Wilkinson, dissenting, relied on Lord Radcliffe’s speech in Edwards v. Bairstow (see below at n. 36). The most unusual approach was Lord Templeman’s: he simply called the question of application a question of law (at p. 685). His speech hints at (but does not avow) the radical view that all questions of application are questions of law; if that was his view it was not adopted by the other Law Lords.

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The most charitable interpretation can make nothing more of the phrase “mixed question of fact and law” than an unexplained report of a conclusion: that a decision can be reviewed, or cannot be reviewed, depending on the effect taken to attach to the phrase. (d) Questions of fact and degree Like “mixed question of fact and law”, this is a baffling turn of phrase. But at least its effect is clear: calling a question a “question of fact and degree” (or a “question of degree”) always implies that a tribunal’s judgment is protected. The phrase trips readily off the tongues of administrative lawyers and judges,34 and has done so since the early tax commissioner cases a century ago. Yet it sounds inept.35 There are clear questions of law that are questions of degree (“when can the House of Lords overrule itself?” is an example). It might seem that a question of application is a question of degree if the term to be applied is imprecise—yet we will see that imprecise terms can apply as a matter of law. To understand what is going on when judges talk of questions of degree, we need to look at the single most important case on questions of law: Edwards v. Bairstow.36 Lord Radcliffe gave the inept phrase an undying prestige by expressly making the relation between questions of degree and questions of fact an entailment: he spoke of questions which “can be described as questions of degree and therefore as questions of fact” 37 But look at the questions that he called questions of degree: “A// these cases in which the facts warrant a determination either way can be described as questions of degree and therefore questions of fact” .38 He did not say that a question of application is a question of fact. In fact, he said that he would “deprecate. . . too much abbreviation in stating the question, as by asserting that it is simply a question of fact whether or not a trade exists”39; it is a question of fact only in cases in which the tribunal cannot be said to be wrong: . . . the law does not supply a precise definition of “trade” . . . In effect it lays down the limits within which it would be permissible to say that a “trade” . . . does or does not exist.40 34 See, e.g. A.C.T. Construction Ltd [1981] 1 W.L.R. 1542 per Lord Roskill at p. 1547; Cole Bros. Ltd v. Phillips (Inspector o f Taxes) [1982] 1 W.L.R. 1450 per Lord Hailsham of St Marylebone L.C. at p. 1455, and Ransom (Inspector o f Taxes) v. Higgs [1974] 1 W.L.R. 1594, HL, per Lord Wilberforce and Lord Simon of Glaisdale. C f Currie v. Commissioners o f Inland Revenue [1921] 2 K.B. 332 per Lord Stemdale M.R. at p. 336; see also Scrutton L.J. at p. 341; Octavius Jepson v. Frederick Wynne Gribble (Surveyor of Taxes) [1895] l Tax Cas. 78 (Exch.). 35 Paul Craig calls it “a confusing tag” : Administrative Law (3rd ed., 1994) (“Craig”) at p. 159. 36 [1956] A.C. 14. 37 [1956] A.C. 14 at p. 33. 38 Ibid., emphasis added. Cf. Octavius Jepson v. Frederick Wynne Gribble (Surveyor of Taxes), supra: “There it was a matter of degree, here it is no matter of degree at all.” 39 [1956] A.C. 14 at p. 34. 40 [1956] A.C. 14 at p. 33.

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So “question of degree” is an unfortunate phrase for a technique which is based on whether the object in question is a borderline case for the application of a vague statutory term such as “trade”. The question is whether the facts warrant a decision either way. We can draw the same conclusion from cases decided decades before Edwards v. Bairstow: in Currie v. Commissioners o f Inland Revenue, Lord Stemdale M.R. had said that a question of application is a question of law in a case “in which nobody could arrive at any other conclusion . . . That reduces it to a question of l aw. . . ” So a question of application is a question of law in cases he calls “extremes”. “But between those two extremes there is a very large tract of country in which the matter becomes a question of degree; and where that is the case the question is undoubtedly, in my opinion, one of fact.”41 “Question of degree” is simply a label for a question of application in a case in which the law permits a decision either way. I propose that the important tests for identifying questions of law are all very similar to this test, and are united by the theme we see in Currie and Edwards v. Bairstow: they all amount to asking whether the law requires one answer to the question of application. The phrase “question of degree” is a label for that technique and adds nothing to it, except a faint air of confusion. But the technique itself is very important, and the courts have found several other ways of referring to it, which are identified in sections (e) to (h) below. (e) Questions “capable of decision either way ” Lord Lowry formulated the test for questions of law in this way in Inland Revenue Commissioners v. Scottish & Newcastle Breweries Ltd.42 The Special Commissioners held that decorations in the taxpayer’s hotel, including sculptures of seagulls in flight, were “plant” under the Finance Act 1971. Lord Lowry held that a case “capable of decision either way” raises “a question of fact and degree” on which the tribunal’s judgment is protected. The same technique was at work in Edwards v. Bairstow: “the facts fairly admitting of the determination come to, there is no error which justifies the court’s intervention” .43 It is an approach that is at least as old as a 1914 judgment of Scrutton J. on the power to overturn decisions in an appeal by case stated: “ . . . if the facts stated are such that you may come to one conclusion or the other, the fact that the Court itself would have 41 Currie v. Commissioners o f Inland Revenue [1921] 2 K.B. 332 at p. 336. (C / Scrutton L.J. at p. 341: “All these cases which involve questions of degree seem to me to be eminently questions of fact” .) 42 [1982] 1 W.L.R. 322 at p. 327. 43 Lord Radcliffe at p. 34; c f “If the facts of any particular case are fairly capable of being so described, it seems to me that it necessarily follows that the determination . . . is not ‘erroneous in point of law’” (at p. 33). See also Viscount Simonds at p. 29, and Lord Roskill’s similar approach in A.C.T. Construction Ltd v. Customs and Excise Commissioners [1981] 1 W.L.R. 1542 at p. 1547.

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come to a different conclusion from that which the Commissioners have come to is no reason for disturbing the decision of the Commis­ sioners”.44 (f) A matter of law Another related way of deciding whether the question of application in a case is a question of law is by asking whether it is answered “as a matter of law”: . . . the interpretation of the language of an Act of Parliament often involves declaring that certain conduct must as a matter of law fall within the statutory language (as was the actual decision in Edwards v. Bairstow); that other conduct must as a matter of law fall outside the statutory language; but that whether yet a third category of conduct falls within the statutory language or outside it depends on the evaluation of such conduct by the tribunal of fact. This last question is often appropriately described as one of “fact and degree” .45 Lord Simon of Glaisdale was right to suggest that this scheme is a formulation of the Edward v. Bairstow doctrine: if as a matter of law it is not insulting merely to disrupt other people’s lawful activities, then the law does not permit the tribunal to find the behaviour insulting. The same technique is also used in a recent House of Lords decision on a statutory appeal from an arbitrator.46 The arbitrator had held that the buyers of a shipment of propane had repudiated the contract, and that the sellers had communicated their acceptance of the repudiation by taking no further steps to perform. Lord Steyn held that “The only question is whether the relevant holding of the arbitrator was wrong in law”.47 The issue for the court was “whether non-performance of an obligation is ever as a matter of law capable of constituting an act of acceptance” .48 This technique fits the pattern that we see emerging: cases in which it is permissible to say that the statutory term applies or does not, cases capable of decision either way, cases in which the tribunal’s decision is not wrong as a matter of law, are cases in which the tribunal has not erred on a question of law.

44 Smith v. Incorporated Council o f Law Reporting fo r England and Wales [1914] 3 K.B. 674 at p. 683. Cf “to quote again from the judgment of Pearson L.J. [in Jarrold v. John Good & Sons Ltd [1963] 1 W.L.R. 214 at p. 225]: ‘Either view could have been taken’; in other words the question was one of fact” : Cole Bros. Ltd v. Phillips (Inspector o f Taxes) [1982] 1 W.L.R. 1450 per Lord Hailsham of St Marylebone L.C. at p. 1457. 43 Ransom (Inspector o f Taxes) v. Higgs [1974] 1 W.L.R. 1594 per Lord Simon of Glaisdale at p. 1618 (emphasis added). 46 Vitol SA v. No reIf Ltd [1996] A.C. 800 per Lord Steyn. 47 At p. 811. 48 At p. 113 (emphasis added). Lord Morris also took the “matter of law” approach in Brutus: [1973] A.C. 854 at pp. 863-864.

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(g) Reasonableness? Can we simply sum up this pattern by saying that a question of application is a question of fact and degree in a case in which it would be reasonable to answer the question of application “yes” or “no” ? We can certainly phrase the test for questions of law in those terms, because reasonableness is such a flexible tool. But doing so will not actually simplify anything. The courts have often taken the reasonableness resort49: we saw that Lord Reid did so in Brutus v. Cozens. And of the possible ways of stating the doctrine in Edwards v. Bairstow, Lord Radcliffe’s own preferred formulation was that a tribunal errs in law if “the true and only reasonable conclusion contradicts the determination” .50 This technique seems to explain the pattern we have seen: if a decision either way is reasonable, the court will not interfere, but if only one decision is reasonable, the court will hold the tribunal to it. But a reasonableness test leaves us with some explaining to do. In identifying questions of law, the court is trying to decide whether it has the power to substitute judgment. How can the existence of the power to apply a test of correctness be a matter of reasonableness? Here is a possible answer to this puzzle: the reasonableness test used in identifying questions of law amounts to a test of clear cases, with the same effect as the “capable of decision either way” test. There is a silent premise in the use of a reasonableness test to address the problem: that it would be unreasonable for a tribunal to hold that the statutory language applies (or does not apply) when it clearly does not (or does). If you come to the conclusion that Brutus’s behaviour was not insulting, you might still conclude that it is reasonable to say that it was insulting. But if Brutus’s behaviour was clearly not insulting, it would be unreasonable for someone to say that it was insulting. Notice that Lord Reid, in stating the reasonableness test he proposed to use in cases on the application of ordinary words, tied the test to the use o f language: The question would normally be whether their decision was unreason­ able in the sense that no tribunal acquainted with the ordinary use of language could reasonably reach that decision.51 It seems that the reasonableness test for questions of law is simply another way of putting the “capable of decision either way” test. We might say that any case is capable of decision either way, in the sense that it is 49 See, e.g. Griffiths (Inspector o f Taxes) v. J. R Harrison (Watford) Ltd [1963] A.C. 1 per Viscount Simonds at p. 11, Lord Reid at p. 16, Lord Morris of Borth-y-Gest at p. 23. 50 [1956] A.C. 14 at p. 36. Lord Radcliffe borrowed the phrase “true and only reasonable conclusion” from Lord Cooper’s speech in I.R.C. v. Toll Property Co. Lid 1952 S.C. 387 at p. 393. 31 [1973] A.C. 854 atp. 861. And cf Lord Brightman in Puhlhofer [1986] 1 A.C. 484 atp. 517: “it would be a misuse of language to describe Diogenes as having occupied accommodation within the meaning of the Act”.

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conceivable that a magistrate (or even a Divisional Court) could call behaviour “insulting” when it is clearly not. But that would be unreason­ able. So we would not be tampering with Lord Lowry’s phrase if we changed it to “reasonably capable of decision either way” . The point to bear in mind is that “reasonableness” can be used as a way of referring to the test that we have seen described in other terms ( . . . the tribunal cannot be said to be wrong; cases capable of decision either way; facts warrant a decision either way; the decision is not wrong as a matter of l aw. . . ). It is not an alternative to that test. (h) No evidence? A tribunal errs in law when it makes a finding of primary fact which there is no evidence to support.52 Can this rule solve the problem? Why not simply say that a tribunal’s answer to a question of application can be set aside if there is no evidence to support it?53 Lord Radcliffe considered the possibility: “I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination . . . or as one in which the true and only reasonable conclu­ sion contradicts the determination”.54 But he preferred the latter descrip­ tion. He said that it was “rather misleading to speak of there being no evidence”. It is misleading because lack of evidence is a problem of proof, and the problem in a case like Brutus is not a problem of proof. The problem in Brutus was not whether one party had proven the facts it alleged, but whether the facts alleged and proved by the police supported the application of the statutory term. If a court said that there is no evidence to support the finding that Brutus’s behaviour was insulting, that could mean nothing more or less than that the term “insulting” cannot be applied to Brutus’s behaviour. It is not that some piece of evidence was mis­ sing—that we do not know enough about what Brutus did to form a judgment that his behaviour was insulting. It is that there is nothing in what he did that amounts to insulting behaviour. If that is right, the no evidence rule has no part to play in solving the problem: it applies only to findings of primary fact. It has been argued that the judges must be operating a no evidence test, because if they treat a question of application as a question of fact in a borderline case they are committed to treating a question of application as 32 For one of many House of Lords statements of the rule, see l.R.C. v. Scottish & Newcastle Breweries Ltd [1982] 1 W.L.R. 322, per Lord Lowry at p. 327. 53 This was done in Bean u Doncaster Amalgamated Collieries Ltd [1944] 2 All E.R. 279 per du Parcq L.J. at p. 284. 54 [1956] A.C. 14 at p. 36. Viscount Simonds treated the question of application in Edwards v. Bairstow as a question of fact, on which the tax commissioners could be reversed “if it appears that the commissioners have acted without any evidence or upon a view of the facts which could not reasonably be entertained” (at p. 29).

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a question of fact in clear cases too—and then the only legal ground for interfering in a clear case is lack of evidence.55 This argument refuses to accept the common thread in the Edwards v. Bairs tow line of cases: it makes nonsense of the judges’ consistent practice of treating a question of application of the same statutory term as a question of fact in one case and a question of law in another. (i) Conclusion Now we can tidy up the toolbox. Talk of questions a layperson could answer and questions that need a trained lawyer is obsolete, and talk of ordinary versus technical language is obsolescent. Nothing is gained by talking of mixed questions of law and fact (though the courts do so). The no evidence rule plays no role in solving the problem. Even the ubiquitous technique of characterising questions as questions of degree does no work: it only states a conclusion. One surprisingly consistent5657set of techniques does the work. We can call it the Edwards v. Bairstow doctrine (since Lord Radcliffe’s speech is invoked so often), though Lord Stemdale M.R. and Scrutton L.J. had set it out clearly 35 years earlier in Currie.51 These techniques treat a question of application as a question of law in a clear case of the application of the statutory term (a case in which the law requires a particular answer to the question of application), and as a question of fact in an unclear case (a case capable of decision either way). We can call this a reasonableness test, as the courts sometimes do, as long as we see that the sense in which the tribunal must act reasonably (if it is not to be held to have erred on a question of law) is that it must not decide that the statutory term applies when it clearly does not, or that it does not apply when it clearly does. The House of Lords has endorsed the technique repeatedly, in Toll Property (1952), Edwards v. Bairstow (1956), Ransom (1982), Scottish and New­ castle Breweries (1982), A.C.T. Construction (1982), Cole (1982), and Smith v. Abbott (1994).58 The test is vague and flexible (its effect depends, as it should, on the statutory language in question), and there are many cases in which it would be impossible to predict how a court will apply it. So it can be manipulated and misappropriated, as Scrutton L.J. recognised in 1921:

55 Etienne Mureinik, “The Application of Rules: Law or Fact?” (1982) 98 L.Q.R. 587 at pp. 615-616. 56 Pace Wade and Forsyth: “there can hardly be a subject on which the courts act with such total lack of consistency as the difference between fact and law” (at p. 948). 57 And in Edwards v. Bairstow, Lord Radcliffe thought that he was expressing “settled law” (at p. 35). 58 In the last case, per Lord Browne-Wilkinson, dissenting; the majority did not disagree on the test for questions of law.

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“ . . . there has been a very strong tendency, arising from the infirmities of human nature, in a judge to say, if he agrees with the decision of the Commissioners, that the question is one of fact, and if he disagrees with them that is one of law, in order that he may express his own opinion the opposite way” .59 But the infirmities of human nature respond in a similarly wayward fashion to all the vague standards of administrative law. There is nothing particularly inconsistent in the court’s use of the question of law stan­ dard. IV. The A cademic C onsensus What have legal scholars done with the problem? Recently they have developed a surprisingly strong consensus, which we can paraphrase roughly as follows: On an analytical or “logical” or a priori approach, either (i) all questions of application are questions of law, or (ii) there is no answer to the problem. On a pragmatic or functional or a posteriori approach, questions of application are treated as questions of law when it is appropriate for the court to interfere. Under the Page doctrine, the analytical approach is intolerable: either (i) it would lead the court to substitute judgment on all questions of application (because all questions of application are questions of law), or (ii) it would be a sham for the judge’s whim (because there is no analytical answer to the problem). I will call this view “the consensus” . It unites the leading administrative law scholars in Britain.60 Some writers have dissented from the con­ sensus,61 and some of those who support it would qualify it in important respects. But we can fairly say that the common opinion is that judges could follow either an analytical or a pragmatic approach to the problem, and that they would do well to choose the pragmatic approach. Is there any judicial support for the consensus? We might say that it cannot lack for judicial support: if all questions of application are questions of law, then every case in the Edwards v. Bairstow line takes a pragmatic approach; if there is no analytical solution to the problem, then every case 59 Currie v. Commissioners o f Inland Revenue [1921] 2 K.B. 332 at p. 339. 60 Cane op. cit., supra, n. 15, pp. 112-115; Craig op. cit. supra, n. 35, pp. 157-160, 347-349; Wade and Forsyth op. cit., n. 14, pp. 947-950; Beatson, “The Scope of Judicial Review for Error of Law” (1984) 4 O.J.L.S. 22 pp. 40-45. The view taken in de Smith, Woolf and Jowell Judicial Review o f Administrative Action (5th ed., 1995) is complex but seems to fit the consensus: the question of application “could as well be styled one of law as one of fact” (at p. 279). See also S. H. Bailey, B. L. Jones and A. R. Mowbray, Cases and Materials on Administrative Law (2nd ed., 1992) at p. 640; and Gwyneth Pitt, “Law, Fact and Casual Workers” (1985) 101 L.Q.R. 217 at pp. 223-231. 61 Mureinik, supra n. 55, arguing that all questions of application are analytically questions of law, and that courts ought to treat them as such; C. T. Emery and B. Smythe, Judicial Review (1986) Chaps 3, 4, esp. at pp. 117-127, arguing that questions of application are sui generis, and that an unreasonable decision on a question of application indicates that the tribunal has made an unstated error of law.

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on the problem must be taking a pragmatic approach. In either case, judges might hesitate to own up to what they are doing: they like to portray themselves as applying the law. Nevertheless, a few judges have deliber­ ately adopted the approach that the consensus recommends. Lord Denning is their champion: he followed an unswerving rule of calling a question “a question of law” when he wanted to.62 But avowed pragmatists are few enough that the consensus has to treat most judges as taking either an unjustifiable analytical approach, or a clandestine pragmatic approach. V. A n a l y t i c a l

and

P r a g m a t ic A p p r o a c h e s

What is an analysis of a distinction (or a concept, or a doctrine . . . )? It is an attempt to understand the distinction: to clarify the meaning of the terms being distinguished. Even if an analysis enables a judge to identify a question of application as a question of law, it will not dictate how to decide the case. Judicial reasoning is practical reasoning, and analytical reasoning cannot exhaust practical reasoning. If a question of application is identified as a question of law, other questions remain, such as whether the tribunal erred in answering the question of application, and whether the law requires substitution of judgment on a question of law, and whether to follow the law, or to change it, or to ignore it. An analytical approach to the problem is an approach that treats the analytical question, “what questions are questions of law?” as a step in reaching a practical conclusion—the decision in a case. That approach seeks grounds for distinguishing questions of law, and treats those grounds as part of the judge’s grounds for decision in a case. A pragmatic approach (as the consensus views it, and as I will use the term) concludes that analytical considerations cannot usefully function as a step in judicial reasoning. On that view, analysis provides no grounds for distinguishing questions of law that can be adequate to the task of identifying questions on which the court ought to substitute its judgment for that of the tribunal. That conclusion is justified if analysis yields no grounds for deciding whether a question of application is a question of law, and it may arguably be justified if analysis yields inadequate grounds for identifying questions of law—grounds that expose error of law as an unsatisfactory standard for the scope of judicial review. It may turn out that there is no sense to the distinction, and that the terms being distinguished are meaningless; then a successful analysis will point out the nonsense, and a pragmatic approach will find other grounds for deciding whether the court should substitute judgment. Or analysis may show that all questions of application are questions of law, and then a pragmatic approach may conclude that the criteria the distinction provides are inadequate to the task 62 ‘I find that when a tribunal has gone wrong, the High Court is usually able to find that it has made an ‘error of law”’: The Discipline o f Law (1979) at p. 66. See the judgments cited supra, nn. 20, 25.

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of dividing power between tribunal and court, so that other grounds for judicial intervention are needed. “Give me a pragmatic approach in any case”, you may be thinking. “It’s more important that judges do something useful with this distinction, than that they give a tidy formulation of it.” There is something to this. You do not actually need an analytical approach in order to make good decisions. Your instincts may be sound. There is every reason to think that a judge can make good decisions without being able (or simply without having the time) to come up with a satisfactory analysis. So why try to work out a decent analytical approach? An analytical approach offers an articulate understanding of what you are doing. And that is valuable in two ways: (1) It might contribute to good practical conclusions. This is not because analytical considerations might weigh against any practical considera­ tions. Judicial reasoning has nothing to fear from an analytical approach. But an analytical approach might contribute to practical conclusions because it might point out pragmatic contradictions—situations in which some value or policy or principle is promoted in one area of the law and flouted in another. An analytical approach might also point out prag­ matic tautologies—so that purported reasons will be exposed as not being reasons at all.63 (2) Aside from its potential usefulness in reaching decisions, judges need to take an analytical approach if they are to give reasons. If their only duty were to give good decisions, an analytical approach would merely be potentially helpful. But it is essential, if they are to give an account of what they are doing. Note, however, that the judges’ need to analyse what they are doing leaves open the possibility that the distinction between questions of law and questions of fact is meaningless, and that the problem has no solution. Then all a judge could do would be to adopt a pragmatic approach explicitly. What will happen if we ask what questions are questions of law? If we conclude that all questions of application are questions of law, then we will conclude that, whenever error of law is the standard of review, the law requires the court to substitute its judgment for that of the tribunal on all questions of application. Then there will be reason to think that the Page doctrine is misguided, and that the panoply of statutes giving appellate review on questions of law are all too invasive. If we conclude that an analytical approach never tells us whether a question of application is a

63 There is a pragmatic tautology in the passage from the Page case cited supra, n. 12.

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question of law, then we will conclude that the law in this area is nonsensical. In fact, I propose that a sound analytical approach will conclude that a question of application is a question of law when the law requires a particular answer to it. The law is not particularly absurd, and it does not require universal substitution of judgment by a court on questions of application. VI.

A n A n a l y t ic a l A p p r o a c h t o t h e P r o b l e m

How would a sound analytical approach deal with the problem? It might start by shaking off the notion that a question can only be unequivocally a question of law or not a question of law. Think of the question, “Is Brutus guilty?” Is that a question of law? Well, of course it is—because it asks what Brutus’s legal position is. But of course it is not a question of law—it might be answered by considerations of the credibility of witnesses and so on that are pure questions of fact for the magistrates. If it were a question of law, magistrates’ decisions could be reversed for any error. The distinction between fact and law would disappear.64 Well then, is the question, “Is Brutus guilty?” sui generis? Of course it is, because it is categorically distinct from the paradigm question of law, “what does the law prohibit?” and the paradigm question of fact, “what did Brutus do?” . But of course it is not an independent genus of question. It is just a question of applying the answer to one question to the answer to the other. If a question can be a question of law in one sense, and not a question of law in another sense, we need to look at the senses in which a question of application might be a question of law. (a) Senses in which questions of application are questions of law or questions o f fact With the question we just looked at (“is Brutus guilty?”), an analytical approach to the distinction between law and fact simply points out relations it bears to the obvious cases of questions of law and questions of fact. An analytical approach to the problem (“was Brutus’s behaviour insult­ ing?”—is that a question of fact or a question of law?) would start out by doing the same thing: pointing to ways in which “was Brutus’s behaviour

64 For instance, if the Divisional Court thought that the magistrates had reached the wrong decision by giving too much credence to a witness, then the Divisional Court would disagree with the magistrates on the question, “Is Brutus guilty?” So, if that question is a question of law, the Divisional Court can overturn decisions of magistrates even for (operative) errors in assessing witness credibility.

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insulting?” resembles (senses in which it is) a question of fact and ways in which it resembles (senses in which it is) a question of law. (i) Question of application = question o f fact The question of application is like a question of fact because it is particular. Brutus’s name crops up in both questions. The paradigm question of law (“what is the offence?”), by contrast, has the same answer in every case: it is a general question. Also, the question whether Brutus’s behaviour was insulting has the ring of a question that would be put to the jury, if Brutus were tried before a jury. And note this: if the Divisional Court in Brutus’s case had been right, and the magistrates ought to have asked themselves a different question (something like whether Brutus’s behaviour showed contempt for other people’s rights), that question would have to be remitted to the trier of fact. Triers of fact typically answer questions of application, though the judge will typically tell the trier of fact what question of application has to be answered. “What question of application is the tribunal to answer?”— That is a question of law. Whatever answer is given, there always remains some question of application for the tribunal to answer.63*65 Finally, we should note that, if Brutus’s behaviour was insulting, that is undoubtedly a fact. A social fact, no doubt,66 but not a juridical fact. If “insulting” were not used as a standard in a statute, we could decide whether Brutus’s behaviour was insulting without any reference to the law. (ii) Question of application = question o f law So it starts to appear that this question of application is obviously, clearly a question of fact. Except that “insulting” was used in a statute—used to define a criminal offence. The answer to this question of application determines Brutus’s legal position: a negative answer entails that he is not guilty. So of course it is a legal question—a question of law. This is a very simple point that may underlie the consensus that, analytically, questions of

63 Bodies that merely identify primary facts are conceivable (for a discussion see Zuckerman, supra n. 6 at p. 27). They would have a function like that of a commission of inquiry, and unlike that of any adjudicative body. 66 I call it a social fact because of what is insulting (like what is polite, complimentary, rude . . . ) depends largely on the conventions of a community (although those conventions often make sense to outsiders, and pertiaps some actions would qualify as insulting in any community). The question whether behaviour is insulting can also be an evaluative question (because calling behaviour “insulting” can be a way of condemning it). That point affects nothing in my argument. We could make the point with any of the evaluative terms that the law uses (e.g. “dishonest” , “malice” . . . ): if they are non-juridical their application is in that sense not a question of law, though we would not want to call it a question of fact if we were occupied with the philosopher’s task of distinguishing evaluative statements from statements of fact.

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application are questions of law.67 The question of application is legal in such a clearly important sense that, forced to choose, it is tempting to plump for calling it a question of law. This simple point is deceptive, and we need to loosen its hold. “Is this tie fashionable?” is obviously a question of fashion. But suppose that fashion demands yellow ties. Then what about the question, “is this tie yellow?” It has fashion implications: a negative answer entails that the tie is not fashionable. But that is the only sense in which it is a question of fashion. Fashion does not answer the question “is this tie yellow?” Similarly, the question “was Brutus’s behaviour insulting?” is not unequiv­ ocally a question of law, merely by virtue of the fact that it has legal implications. So while the question of application is a legal question in the obvious sense that its answer determines Brutus’s legal position, a good analytical approach will not lose sight of the distinct senses in which it is a question of fact, and will not lose sight of the fact that it is a question of law in the special sense that it is the question that the law poses. The paradigm question of law (“what does the law prohibit?”) asks what standard the law sets; the question of application is the standard. (b) What more can an analytical approach do?—Find the relevant sense What conclusion should an analytical approach reach? That a question of application is neither a question of fact nor a question of law? or both? No; again, it is only neither in that there are respects in which it is not a question of law and other respects in which it is not a question of fact. And it is only both in that there are respects in which it is a question of law and other respects in which it is a question of fact. Should an analytical approach plump for one alternative or the other? No; plumping in this context would be analytically disastrous, because it would commit us to discounting the facts that do not fit our conclusion. An analytical approach does not have to plump. Given an expression that can be applied differently in different senses, an analytical approach should ask what the relevant sense is. That means asking, “why draw this distinction?” An analytical approach cannot get off the ground without addressing that question. And look at the consequence: “why distinguish questions of fact from questions of law?”—that is a pragmatic question. It is impossible to come up with an analytical approach without taking

67 See, e.g. Mureinik at p. 618: “ . . . the court’s answer to the question attaches legal consequences to that occurrence or situation. Why, then, should we decline to call that answer the judgment of the law? . . . And if the decision is the judgment of the law, it says what the law is. That is all that we mean by an answer to a question of law” . The court’s answer to the question “Is Brutus guilty?” also attaches legal consequences to the occurrence, and is the judgment of the law; but it cannot be a question of law in the sense required of a test for judicial review (see supra, n. 64).

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account of pragmatic considerations. No analytical solution to the problem can avoid asking, “what is the relevant sense of ‘question of law’?” This is a pragmatic inquiry, but note how general it is: it does not ask, “what answer to this question would be convenient?” but “what would make sense of this question?” This point is central to the argument, and it is worth elaborating.68 The flute with no holes Suppose you bring home a prop from the theatre where you work. You tell your son, “here’s the flute we used in ‘Twelfth Night”’. He takes it to school and asks if he can join the band. The band leader says no. “That’s not a flute”, she says. “Flutes have holes.” Is the prop a flute? Everyone at the theatre called it a “flute”, even when they were speaking out of character. Everyone in the band refused to call it a “flute” . Consider two accounts of whether the prop is a flute, based on two attempts at giving an analysis of the word “flute”: (1) Value-free analysis. The meaning of a word is a matter of how people use the word. An analysis of meaning is an a priori inquiry: it asks how people use the word without inquiring into their purposes, intentions, etc. So to ask if the meaning of the word “flute” determines whether the prop is a flute, we look at the objects to which people apply the word “flute” . Then we will have a test for the application of “flute”: it applies to objects with the same properties as the objects to which people apply the word. This analytical approach reveals that some people call the prop a “flute” and some refuse to do so. We can conclude either (i) that the prop is a flute because some people call it one, or (ii) that there is no analytical answer to the question, because there are conflicting facts about the use of the word “flute”. On conclusion (i), the musicians are wrong to deny that the prop is a flute (but there are good pragmatic reasons not to call the prop a “flute” at band practice: people will laugh at you). On conclusion (ii), there is no answer to the question whether the prop is a flute, so you might as well just do what achieves good results. Call the prop a “flute” at the theatre, so that you will fit in. Don’t call it a “flute” at band practise, because people will laugh at you. (2) Analysis based on normative premises. The actors who called the prop a “flute” were using the word for something that is not a flute. The actors 68 The claim that any analysis of the concepts used to describe human life must rest on the analyst’s evaluations is familiar from John Finnis, Natural Law and Natural Rights (1980), Chap. 1. For a recent discussion of the role of normative premises in conceptual analysis see Joseph Raz, “Intention in Interpretation” , in Robert P. George ed., The Autonomy o f Law (1996) at pp. 260-262. Raz discusses the normative premises on which an explanation of the nature of law or of legal interpretation must be based, and rejects the notion that a theory of interpretation must be value-free. These views enlarge on H. L. A. Hart’s notion of the “internal point of view” {The Concept o f Law (2nd ed., 1994) at pp. 89-91,98), though Finnis and Raz depart from Hart’s account and from each other’s in important respects.

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were not actually concerned whether it was a flute, but only whether it looked like one. They did not need a real flute; musicians do need real flutes. Something that is not a real flute is not a flute. So the prop is not a flute. The actors, of course, speak English. When they called the prop a “flute”, they were using the word in a secondary, analogical sense that is akin to a metaphorical use (the dawn does not have rosy fingers, and the prop is not a flute, but we can call the dawn “rosy fingered” and we can call the prop is a “flute”). In that sense, the prop really is a flute (the actors weren’t lying when they called it a “flute”). Approach (2) is preferable. It can explain how musicians and actors use the word “flute”. Approach (1) makes the meaning of the word into a guessing game; approach (2) makes sense of it. Approach (1) is an analytical approach as the consensus conceives it. Approach (2) is an analytical approach that asks normative questions. We cannot say what the object is, unless we know the point of calling something a “flute” (i.e., in this case, whether the point is to credit it with the attributes that are important to actors, or the attributes that are important to musicians). Then an analytical approach to the meaning of the word “flute” will not be able to answer the question “is this a flute?”, unless the analyst knows which set of purposes is appropriate. And appropriateness is a normative notion. So an analytical approach needs to make a normative decision (or just needs to proceed on a normative presupposition), in answer to the question, “what purposes should I count as relevant?” Why would an analytical approach say that the sense in which the musicians use the word “flute” is primary, and that the actors are borrowing the word and applying it to something that is not a flute? Why not say that the musicians are reserving the word for a particular kind of flute—the kind with holes? Because of a decision (or presupposition) that the purposes of the musicians provide the norm for the use of the word, and that the actors’ purposes derive from the musicians’. That is a normative judgment. It is patently correct, and it explains the way the actors use the word “flute” as well as the way the musicians use it. The actors were pretending to do what the musicians do. But that is not a fact that we could read off from information about which objects people have applied the word to. Your son can only grasp the meaning of the word “flute” if he grasps this “internal” aspect of its use: that musicians have reason to use the word to refer to things that are good for making music. Notice that we need to understand why the word is used, what matters about the things people call flutes, what is proper to flutes, the point of talking about flutes, what you should call a flute—all of which are pragmatic, or prescriptive, or normative matters. But they are very general normative matters. We do not need to know what some particular person might want to do with a flute, or what ought to be done with a flute in a (1998) 114 L.Q.R., A pril © S weet & M axwell and C ontributors

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particular situation—only what people characteristically want to do with flutes. Suppose your two-year old daughter hears the word being used, and decides that “flute” means “tool for bashing things with”. She asks for a flute when she wants to bash something, and when she seems a hammer she says, “nice flute!” Your daughter misunderstands the word “flute” . And if you told her so, it would be no answer for her to say, “No, I know what it means: ‘flute’ means ‘bashing implement’. I have answered the normative question, ‘what are flutes for?’ (which you say an analytical approach must answer), by reference to the best purposes I could think of.” The fact that she wants to bash things with the flute does not make the word “flute” mean “bashing implement”. This is so even if she has good reason to bash things with it—even if in some situation it is right or even heroic to bash things with it. What she will be bashing things with is a musical instrument. To understand that a flute is a musical instrument, she will not have to understand any particular person’s purposes, nor what it would be good to do with a flute in any particular circumstances; she will have to understand the purposes of people in general who use flutes, and what a flute is good for in general. Why this palaver about flutes? Just to make two points about analysis: (i) An analytical answer to the question “is a question of application a question of law?” cannot get off the ground without asking a normative question. You cannot even decide whether an object is a flute without making (or taking for granted) normative judgments. And you cannot decide whether a question is a question of law without doing so, either. But the normative question that an analysis needs to address is very general: it is not, “what solution to the problem would give the best result in the case before the court?” but “why ask this question?” (ii) As long as that is the normative question that we are asking, it makes sense to say that we are still giving an analysis, clarifying the meaning of the terms in question, asking what questions are questions of law, and so on. It makes sense because our approach will be distinct from the approach of Katharine and Lord Denning, the purely pragmatic approach that asks, “what character­ isation of the phenomena will achieve the right outcome in this case?” (c) The point of distinguishing between questions of law and questions o f fact Why ask whether a question of application is a question of law? The function of the error of law standard, remember, is to distribute decision­ making power between the court and the tribunal. The purpose must be to do so in a way that could improve administrative decision-making (this is the normative judgment that an analytical approach must make). The use of error of law as a standard of review must be treated as a way of distributing decision-making power that is calculated to promote the interest of the (1998) 114 L.Q.R., A pril © S weet & M axwell and Contributors

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community in good administration, and the interest of the applicant in fair and just administration. The purpose cannot be, e.g. to enhance the prestige or augment the territory of the judges, because that would not be a good way of fulfilling the function of distributing decision-making power. How can we make the doctrine of substituting judgment on questions of law comprehensible as a technique for accomplishing the purpose of improving decision-making? It would not be a comprehensible technique for improving decision-making if we said, “the court must substitute its judgment when the answer to the question has legal consequences” . That would treat the law as the preserve of judges, rather than their responsi­ bility. Similarly, review for error of law would not make sense as a technique for improving decision-making if we said, “the court should only substitute its judgment on general questions, and every question of application is particular. That would not make sense because an improvement in decision-making in a particular case is just as truly an improvement (though it may not be as great an improvement) as is a general improve­ ment. What would make sense of review for error of law as a technique for improving decision-making? Review for error of law must be taken as aimed at improving decision-making by substituting the answer that the law requires (if it requires one) for the view of the tribunal.69 The notion that the court must substitute its judgment for that of the tribunal when the law demands a particular answer would make sense of error of law as a standard of review. And then the rationale for the standard of review would be to make the court’s view of what the law requires into a limit on the autonomy of tribunals. This may be a deficient standard.70 But it should be understood as a standard, as something intelligibly (if wrongly) directed to fulfil a function. (d) The proposed solution When should a question of application be treated as a question of law? When doing so will give effect to the court’s view of what the law requires.

69 Dividing decision-making power can improve decision-making if review provides consistency, prevents abuse of power, replace inept decisions with better decisions.. . None of those results is guaranteed to result from judicial intervention: there may already be consistency in a hierarchical system of tribunals, a court may abuse its power, a tribunal may be more skilful. . . And review for error of law may not be the best way to achieve these results. But substitution of judgment on questions of law must be understood as taken to provide such results, or it would not achieve the purpose of improving decision­ making. 70 It is a deficient standard if there are convincing reasons for specialist tribunals to be able to develop the law in their special areas. Whether there are such reasons is beyond the scope of this article; it often seems to be a fundamental tenet amongst English judges that there can be no such reasons, an attitude which has doubtless generated the Page doctrine. My argument here includes the claim that, whether that attitude is misguided or not, it does not require substitution of judgment on all questions of application.

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That is, when the court decides that the law requires one answer to the question of application. So I propose this solution to the problem: A question of application is a question of law in the relevant sense when the law requires a particular answer (e) Applying the solution To apply the solution that I have proposed, we need to know when the law requires one answer to a question. This is simpler than it might sound: (i) c l e a r c a s e s : The law requires one answer to the question of application in a clear case of the application of the statutory language. So if Brutus had hurled racist taunts at the spectators, the law would have required the magistrates to hold that his behaviour was insult­ ing. (ii) j u d i c i a l e l a b o r a t i o n : The courts have the legal power to elaborate the law. When it is unclear what the language of the statute requires, the law is unclear. But the law gives the courts the legal power to make it clear by their decision. When the courts decide that the law treats certain behaviour as not insulting, then, the law does treat it as not insulting. Lord Reid held that behaviour like Brutus’s does not amount to insulting behaviour for the purposes of the Public Order Act. After Cozens v Brutus, it did not. The House of Lords gave the law’s answer to the question. When a court holds that the law requires a tribunal to answer a question of application in one way, it is often unclear whether the court is giving effect to the statute in a clear case of its application, or is elaborating the law. Did the House of Lords make new law in Brutus? We might say that the House of Lords made new law (to the effect that behaviour like Brutus’s does not count as insulting for the purposes of the statute) by imposing a special sense of “insulting”. Or we might say that the issue was unclear, and that the House of Lords made new law by resolving the unclarity. Or we might say that the law was already in Brutus’s favour, because in the context of the Public Order Act, “insulting” clearly does not apply to Brutus’s behaviour. I call the court’s power to resolve the issue a legal power to elaborate the law; we could (as the courts do) call it statutory interpretation; moreover, because it can be unclear whether a case is unclear, ordinarily the courts can quite reasonably portray their decisions as straightforward applications of the statutory language. What we have to see in any of these cases is that it is up to the court to decide whether the law requires one answer to the question of application—and its decision makes the law. So in English law, when do courts have legal power to interfere with tribunals’ decisions on questions of application? In two circumstances (1998) 114 L.Q.R., A pril © S weet & M axwell and Contributors

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which cannot be sharply distinguished: (1) when the tribunal applies the statute wrongly in a clear case, and (2) when the courts exercise their legal power to elaborate the law, in a way that runs contrary to the tribunal’s decision. (f) Summary of the argument: 1. There are senses in which a question of application is a question of fact: its particularity; “insult” is not a juridical concept. There are senses in which a question of application is a question of law: the answer to the question of application has legal consequences; the question of application is the question the law poses. 2. What is the relevant sense of “question of law”? Step 1 cannot tell us. We need to ask, “relevant for what purpose?” That means asking, “Why distinguish questions of fact from questions of law?” 3. The point of distinguishing questions of fact from questions of law is: to make the court’s view of what the law requires into a limit on the autonomy o f administrative tribunals. 4. So a question of application is a question of law in the relevant sense when the law requires one answer to the question of application. 5. The law requires one answer to the question of application (i) in a clear case of the application of the statutory language, and (ii) when the court exercises its legal power to elaborate the law so as to require {or interprets the statutory standard to require) one answer. Once the proposed approach incorporates pragmatic considerations, why not just call it a pragmatic solution? The story of the flute with no holes was meant to answer this objection: An analytical approach is not an approach at all if it stops at step 1 in the argument. And I propose that it makes sense to say that we are still asking what a flute is (as opposed to asking what it would be useful to call a flute), even if normative considerations neces­ sarily enter into answering that question. The normative considerations essential to an analytical approach are general (“what is the point of calling a question ‘a question of law’?” ), while the normative considerations that a purely pragmatic approach would take into account are particular (“what good consequences can I achieve here by classifying the question as a question of law or a question of fact?”). Here is a simple test for the success of the proposed solution: does it make sense to say that a question of application is a question of law, in the relevant sense, when the law requires a particular answer to it (as opposed to saying that it would be convenient to use the notion of a question of law (1998) 114 L.Q.R., A pril © S weet & M axwell

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in a particular way)? If that does make sense, the solution is descriptive, and analytical, though it is based on a normative premise. The pragmatic approach asks “what questions would it be useful to treat as questions of law?” The analytical approach that I propose does not ask that question at all. It asks, “what is the point of treating questions as questions of law?” The difference between those two questions is like the difference between the question “what do you want to do with this?” and the question “what is this for?” The proposed solution seeks to state the requirements of the Page doctrine (and of the statutes providing for appeal on questions of law). It is clearly distinct from a seriously pragmatic solution, which would not be troubled about that at all. VII. T he S olution and the Consensus It is very easy to reconcile the solution I propose with the consensus—to an extent. The proposed solution and the consensus are both in favour of the Edwards v. Bairstow approach. And both reach some similar conclu­ sions as to what courts should do: they should pay attention to the reasons for review, and they should not use their power to interfere on questions of law to replace the judgment of tribunals on all questions of application. Moreover, the proposed solution is able to account for the attraction of a pragmatic approach. Recall the second circumstance in which the proposed solution claims that courts have power to interfere with a question of application: when the courts exercise their legal power to elaborate the law. Like all law-making decisions, the decision whether (and how) to do that is a pragmatic decision. So the proposed solution shares pragmatic features with the approach that the consensus recommends. There remain three significant distinctions between the proposed solu­ tion and the consensus. First, they differ over the nature of analysis. The proposed solution describes the Edwards v. Bairstow doctrine as the result of a sound analytical approach, not as the result of abandoning analysis. It claims that the “analytical approach” rejected by the consensus is simply an unsound analytical approach, which either plumps for calling questions of application questions of law, or says that there is no analytical solution to the problem. Secondly, the proposed solution and the consensus actually diverge in effect, in so far as the writers are proposing the pragmatic approach as a way to avoid, or to modify, the Page doctrine. On my view, that doctrine is not actually as intrusive as it has been made out to be, because not all questions of application are questions of law. Yet there are still convincing reasons for abandoning the Page doctrine: Albert Venn Dicey notwith­ standing, courts should not necessarily have the last word on questions of law. Should the courts follow the consensus, then, and lean toward treating questions of application as questions of fact simply in order to substitute a (1998) 114 L.Q.R., A pril © S weet & M axwell and C ontributors

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sensible standard of review for the standard of review that the House of Lords has developed? On the view that I have proposed, to do so would be to change the law without saying so. Lower courts cannot do that, and the House of Lords has committed itself not to do so. There may, however, be good reason for the House of Lords to change the doctrine openly and deliberately. Thirdly, the solution rejects the view that there is no analytical solution to the problem. It that were so—if the scope of review were based on an incoherent distinction—then there would be no law to disregard. All bets would be off. Necessity would justify a pragmatic approach, and the judges would do well to craft a sensible standard of review out of chaos. The comity of judges forbids them to say that seven House of Lords decisions and dozens of Acts of Parliament are talking nonsense. But a careful theorist cannot rule it out in the same way: life gives no guarantee against widespread judicial and legislative nonsense. A careful theorist will, no doubt, form a view that the law tends not to be nonsensical even when it is bad. But a careful theorist will not apply this view as a presumption. Courts use presumptions out of necessity; theorists should, instead, try to understand what is going on. The proposed solution does not claim that widespread legal nonsense is inconceivable—just that nonsense is not as widespread as people think in this area of the law. V m . T h e P r o p o s e d S o l u t io n a n d t h e C a se s

On the consensus view, there is something wrong with the cases. The judges seldom discuss the pragmatic concerns the consensus urges on them. They do not hold consistently to an analytical approach (as the consensus conceives it) either, and the best we can say is that they must be pursuing some sort of inarticulate pragmatic approach, which leads to all sorts of inconsistency because its motivating principles are silent and undeveloped. The solution that I have proposed makes more sense of the cases. First, it is probably the only way to make sense of the common thread that we saw in the cases: the notion that a question of application of the same statutory provision can be a question of law in one case and a question of fact in another case. Secondly, the proposed solution offers to explain the uncertainty and variability of the cases. The distinction between fact and law is unclear simply because the distinction between clear cases and unclear cases of the application of statutory language is unclear. The distinction is variable because whether the courts exercise their power to elaborate the law will depend on the individual demands of particular situations (on the demands, in fact, that would motivate a good legis­ lator). (1998) 114 L.Q.R., A pril © S weet & M axwell and C ontributors

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Finally, the proposed solution recommends that judges apply the reasoning that has, in fact, been predominant in the House of Lords. They should hold that a question of application is a question of fact when it is capable of decision either way, and that it is a question of law when the law requires a decision one way. (Whether the House of Lords should reform the Page doctrine, and whether Parliament should find other ways to divide decision-making power between courts and tribunals, are separate ques­ tions.) So the proposed solution is consistent with the most influential and sophisticated of the decisions—the speech of Lord Radcliffe in Edwards v. Bairstow, which is widely regarded as the prime example of the pragmatic approach.71 What the law does is to lay down limits within which it would be permissible to say that the standard applies or that it does not apply. There are “many combinations of circumstances,” Lord Radcliffe said, “in which it could not be said to be wrong to arrive at a conclusion one way or the other” .72 Those are the cases in which the law does not require one answer to a question of application. In those cases, there is nothing in a sound analytical approach that requires us to treat a question of application as a question of law. Timothy Endicott.*

71 C f Beatson, supra n. 60 at p. 40; Craig at p. 158. 72 [1956] A.C. 14 at p. 34. * St. Catherine’s College, Oxford. I benefited from discussions with Joseph Raz and Karen Yeung.

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[2] SOUND GOVERNANCE AND SOUND LAW Colin S. Diver * A d m in is t r a t iv e L a w : R e t h in k in g J u d ic ia l C o n t r o l of B u ­ r e a u c r a c y . B y Christopher F. Edley, Jr. N e w H a v en : Y a le U n iv e r ­ sity P ress.

1990. P p . xiii, 270.

I h a v e o fte n th o u g h t o f “ sc o p e o f r e v ie w ’’ as th e b la c k h o le o f a d ­ m in istr a tiv e la w — a so u r c e o f e n d le ss fa sc in a tio n a n d u tte r ly n o illu ­ m in a tio n , a c o lla p se d d o c tr in a l sta r th a t s w a llo w s u p ev e r y id e a in its v ic in ity , w h o s e p r e se n c e ca n b e d isc e r n e d o n ly b y th e w a y it d isto r ts th e b e h a v io r o f th o s e w h o stu m b le in to its g r a v ita tio n a l field. In re­ flectin g u p o n m y o w n e n c o u n te r s w ith th e su b ject, I a m r e m in d e d o f O liv er W e n d e ll H o lm e s ’ d e sc r ip tio n o f h is d a y s as a la w stu d e n t at H arvard: “ O n e fo u n d o n e s e lf p lu n g e d in a th ic k fo g o f d e ta ils — in a b la ck a n d fr o z e n n ig h t, in w h ic h w e r e n o flo w e r s, n o sp rin g , n o ea sy j o y s .” *1 A n y o n e w h o d a res to p lu n g e in to th is b lea k an d h u m o r le ss w o r ld d eserv es c red it, i f o n ly fo r co u ra g e. In h is r e c e n t b o o k , Administrative Law: Rethinking Judicial Control of Bureaucracy, C h r isto p h e r F . E d ley , J r .,2 d o e s ju s t th a t. A n d it is in d e e d a c o u r a g e o u s a n d a m b i­ tio u s effort. D r a w in g u p o n e x te n siv e e x p e r ie n c e a s a stu d e n t o f la w and p u b lic p o lic y , fed era l b u rea u cra t, p o litic a l str a te g ist, a n d la w p r o ­ fesso r, E d le y h a s w r itte n a b o o k o f b roa d sw e e p th a t p r o b e s th e u n d e r ­ ly in g c a u se s o f a d m in istr a tiv e la w ’s d o c tr in a l m a la ise a n d offers a p r o v o c a tiv e rem ed y . A s d ia g n o sis, th e b o o k su c c e e d s a d m ira b ly . E d le y lo c a te s th e p r in ­ cip a l so u r c e o f d o c tr in a l c o n fu sio n in th e a m b iv a le n c e s a n d a m b ig u i­ ties th a t c h a r a c te r iz e o u r a ttitu d e s a b o u t th e se p a r a tio n o f p o w e r s. A s p r escrip tio n , th e b o o k is far less p e r su a siv e . E d le y u rg es r e v ie w in g co u r ts to ca st o ff th e sh a c k le s o f c o m p a r a tiv e in stitu tio n a l c o m p e te n c e and b e c o m e fu ll p a rtn ers in th e d e v e lo p m e n t o f e ffe c tiv e p u b lic p o lic ie s th r o u g h th e m e c h a n ism o f “ so u n d g o v e r n a n c e r e v ie w .” L ik e m a n y b o ld m a n ife sto s, E d le y ’s is lo n g o n e x h o r ta tio n a n d v ery sh o r t o n s p e c ­ ifica tio n . H is u to p ia is im a g in e d , n o t d e sig n e d . U to p ia n refo rm ers

* Dean and Bernard G. Segal Professor of Law, University of Pennsylvania Law School. B.A. 1965, Amherst College; LL.B. 1968, Harvard. — Ed. 1. O.W. Holmes, Brown University — C om m encem ent 1897, in Collected Legal Papers 164 (1920). I don’t mean to pick on Harvard. It happens that Christopher Edley and I also studied there and that Edley is now a member of its faculty. 2. Professor of Law, Harvard Law School. Edley has also worked as a White House and presidential campaign aide.

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w ill a p p la u d . C u r m u d g e o n ly in stitu tio n a lists w ill sh a k e th eir h ea d s. I g u e ss I ’m a c u r m u d g e o n .

I E d le y d e v o te s th e first h a lf o f h is b o o k to d e sc r ib in g a n d c r itic iz in g th e “ str u c tu r e ” o f c o n te m p o r a r y a d m in istr a tiv e la w . In a v ery b r ie f in tr o d u c to r y s e c tio n , h e tr a c e s th e fa m ilia r sto r y o f th e tr iu m p h o f N e w D e a l p r a g m a tism o v e r n in e te e n th -c e n tu r y “ sep a ra tio n o f p o w e r s fo r m a lism ” (p . 5). F o llo w in g th e N e w D e a l, th e p ro ject o f a d m in istr a ­ tiv e la w sh ifte d fro m m a in ta in in g str u c tu r a l in te g r ity in a sy ste m o f sep a ra ted p o w e r s to c o n tr o llin g th e e x e r c ise o f d isc r e tio n b r o a d ly d e le ­ g a ted to m u ltifu n c tio n a l a d m in istr a tiv e a g e n c ie s. In th e p r o c e ss, a c ­ c o r d in g to E d le y , c o n c e r n w ith se p a r a tio n o f p o w e r s d id n o t d isap p ear; it m e r e ly w e n t u n d e r g r o u n d , a s it w ere, to fo rm th e h id d e n su b str u c tu r e o f c o n te m p o r a r y a d m in istr a tiv e la w d o ctrin e. A fte r y ea rs o f p a tie n t ju r isp r u d e n tia l a r c h a e o lo g y , E d le y h a s u n ea rth ed th a t stru c tu r e fo r a ll to see. T h e str u c tu r e c o n s is ts o f a “ tr ic h o to m y o f p a r a d ig m a tic d e c isio n m a k in g m e th o d s ” th a t fo r m s “ th e u n d e r ly in g fr a m e w o r k b o th fo r c a li­ b ra tin g th e d e g r e e o f ju d ic ia l d e fe r e n c e to b e a c c o r d e d a g e n c y a c tio n an d fo r n o r m a tiv e p r e sc r ip tio n s a b o u t a d m in istr a tiv e p r o c e d u r e ” (p. 13). E d le y la b e ls h is th r e e m o d e ls “ a d ju d ic a to r y fa irn ess, p o litic s, an d scie n tific e x p e r tise ” (p. 3; e m p h a sis o m itte d ). T h e c o n n e c tio n b e tw e e n th is ta x o n o m y a n d tr a d itio n a l se p a r a tio n o f p o w e r s th in k in g is o b v i­ o u s. T h e th r e e p a r a d ig m s id e a liz e th e d e c isio n m a k in g sty le s c o n v e n ­ tio n a lly a sso c ia te d w ith th e th ree b r a n c h e s o f g o v e r n m e n t, an d in th a t se n se th e tr ic h o to m y ca rries fo rw a rd in to th e m o d e r n era th e str u c ­ tu ra l c o n c e r n s o f n in e te e n th -c e n tu r y a d m in istr a tiv e law . E d le y d e v o te s m o s t o f C h a p te r T w o a n d p arts o f C h a p ters T h ree an d F o u r to a d e m o n str a tio n o f th e p e rv a siv e in flu e n c e o f th e tr ic h o t­ o m y o n ju d ic ia l r e v ie w o f a d m in istr a tiv e a c tio n . C o u rts u se th e tri­ c h o to m y , h e c la im s, as a fr a m e w o r k fo r c a te g o r iz in g p a rticu la r a d m in istr a tiv e d e c is io n s o r a c tio n s a n d th e n se le c tin g th e d e g r e e o f d e feren ce a p p r o p r ia te to th e d e c isio n m a k in g m o d e l ch o se n . T h u s, for e x a m p le , E d le y c la im s th a t th e c o n v e n tio n a l la w -fa c t-p o lic y d is tin c ­ tio n in sc o p e o f r e v ie w d o c tr in e “ flo w s n e a tly fro m th e tr ic h o to m y ” (p. 2 9 ). C o u rts te n d to r e v ie w “ q u e stio n s o f la w ” m o st in d e p e n d e n tly b e ­ c a u se th e y a s s o c ia te la w fin d in g w ith th e a d ju d ic a to r y fa irn ess m o d e l th a t th e y th e m se lv e s p ra ctice. T h e y a c c o r d m o r e d e feren ce to fin d in g s o f “ fa c t” an d s till m o r e to d e te r m in a tio n s o f “ p o lic y ,” w h ic h th e y v ie w as p r o d u c ts o f su c c e ssiv e ly le ss ju d ic ia lly a c c e ssib le p ro c e sse s o f s c ie n ­ tific an d p o litic a l d e c isio n m a k in g (p. 2 9 ). S im ila rly , E d le y a ttrib u tes a c lu ste r o f d o c tr in e s 3 b a sed o n th e fa m ilia r r u le m a k in g -a d ju d ic a tio n

3. For example, the principle that a hearing is not constitutionally required in rulemaking proceedings, Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441 (1915); Londoner v.

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d istin c tio n to tr ic h o to m o u s th in k in g (p p . 3 6 -4 8 , 1 7 5 -8 0 ). E d le y d e v o te s th e b a la n c e o f th e b o o k ’s first h a lf to d e m o n str a tin g th e fu n d a m e n ta l in c o h e r e n c e o f a sy ste m o f ju d ic ia l r e v ie w g r o u n d e d o n th e tr ic h o to m y ’s th r e e p a r a d ig m s. H e d istin g u ish e s b e tw e e n th e s y s te m ’s “ d e sc r ip tiv e ” a n d “ c o n c e p tu a l” fa ilin g s. T h e d e sc r ip tiv e fa il­ in g s rela te to th e in e v ita b ly m e ssy fit b e tw e e n id e a l ty p e s a n d rea lity . A s a c o n se q u e n c e , c o u r ts o fte n a ssig n a p a r tic u la r a g e n c y a c tio n to th e w r o n g c a te g o r y o r in c o r r e c tly a ssu m e th a t th e a g e n c y h a s sa tisfie d th e stric tu r e s o f th e id e a l ty p e . A c o m m o n e x a m p le is th e r e fle x iv e j u d i­ c ia l a ttrib u tio n o f a d m in istr a tiv e “ e x p e r tis e ” to d e c is io n s th a t w e r e in fa ct in fo rm e d p r im a r ily b y p o litic a l b a r g a in in g o r ju s t b ad sc ie n c e (p p . 5 4 -5 7 ). T h e tr ic h o to m y ’s c o n c e p tu a l p r o b le m s are o f tw o ty p e s. F ir st, th e c a te g o r ie s are in te r tw in e d to su c h a n e x te n t th a t it b e c o m e s a lm o s t im p o ssib le to p o lic e th e b o u n d a r ie s a m o n g th e m (p p . 7 4 -8 3 ). E a c h p a r a d ig m a tic m e th o d o f d e c is io n m a k in g d e p e n d s in s o m e m e a su r e o n m e th o d s c h a r a c te r istic o f th e o th e r s. T h u s, to u se E d le y ’s e x a m p le , g o o d p o litic s req u ires a fo u n d a tio n o f r e lia b le e m p ir ic a l in fo r m a tio n a b o u t th e p r o b le m a n d a lte r n a tiv e s o lu tio n s (g o o d s c ie n c e ), w h ic h in tu rn req u ires s o m e a tte n tio n to c o n c e r n s a b o u t th e c o n s is te n c y w ith w h ic h c o m p e tin g in te r e sts are b e in g trea ted (fa ir n e ss), a n d s o o n (p p . 8 0 -8 3 ). T h e se c o n d c o n c e p tu a l fa ilin g o f th e tr ic h o to m y is th e “ a ttr ib u tiv e d u a lity ” o f its th r e e m o d e ls (p . 8 3 ). B y “ a ttr ib u tiv e d u a lity ,” E d le y m e a n s th a t e a c h m o d e l is a sso c ia te d w ith b o th p o sitiv e a n d n e g a tiv e n o r m a tiv e a ttrib u tes. T h u s, a d ju d ic a to r y fa ir n e ss is a s s o c ia te d w ith th e v irtu es o f c o n s is te n c y , n e u tr a lity , a n d r e a so n e d e la b o r a tio n , as w e ll as th e v ic e s o f p o litic a l u n a c c o u n ta b ility , p r o c e d u r a lism , a n d c o n s e r v a ­ tism . S c ie n c e h a s th e p o s itiv e a ttr ib u te s o f o b je c tiv ity , v e r ifia b ility , a n d r a tio n a lity , b u t a lso th e n e g a tiv e a ttr ib u te s o f a lie n a tio n , im p e r ­ s o n a lity , an d in a c c e ssib ility . T h e p o litic a l m e th o d im p lie s b o th p o p u ­ lar a c c o u n ta b ility a n d m a jo r ita r ia n ty r a n n y , r e sp o n siv e n e ss a n d w illfu ln e ss (p. 21 fig. 1). G iv e n th is d u a lity , n o a b so lu te g u id e d e te r ­ m in e s for c o u r ts w h e n an a g e n c y s h o u ld u tiliz e a p a r tic u la r m o d e l. A lth o u g h c o u r ts o c c a s io n a lly a tte m p t to b a la n c e th e c o s ts a n d b e n e fits o f a p a rticu la r m e th o d o lo g y , as in th e c h o ic e o f r u le m a k in g o r a d ju d i­ c a tio n ,4 u su a lly th e y a rb itra rily se le c t e ith e r th e p o sitiv e a ttr ib u te s o f

Denver, 210 U.S. 373 (1908); the highly deferential standard for reviewing an agency’s decision to make policy by adjudication rather than rulemaking, NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974); SEC v. Chenery Corp., 332 U.S. 194 (1947); the greater judicial tolerance for ex parte communications in rulemaking proceedings, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981); and the “unalterably closed mind” standard for disqualifying a rulemaker for prejudg­ ment or bias, Association of Natl. Advertisers, Inc. v. FTC, 627 F.2d 1151 (D.C. Cir. 1979), cert, denied, 447 U.S. 921 (1980). 4. See, e.g., National Petroleum Refiners Assn. v. FTC, 482 F.2d 672 (D.C. Cir. 1973), cert, denied, 415 U.S. 951 (1974); NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969); Robinson, The M aking o f A dm inistrative Policy: Another Look at R ulem aking an d A djudication an d A dm in is­

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th e m o d e l fa v o r e d or th e n e g a tiv e a ttr ib u te s o f th e m o d e l d isa p p r o v e d . A s a c o n se q u e n c e o f th e se d e sc r ip tiv e an d c o n c e p tu a l fa ilin g s, th e tr ic h o to m y h a s n o t p r o d u c e d a c o h e r e n t ro a d m a p to g u id e c o u r ts in th e ir sea rch fo r c o n str a in ts o n th e e x e r c ise o f a d m in istr a tiv e p o w er. In ste a d , it o p e r a te s m o r e in th e m a n n e r o f a m e n u , fro m w h ic h c o u r ts a rb itrarily , se le c tiv e ly , an d o fte n in a c c u r a te ly c h o o s e a r g u m e n ts to su p p o r t c o n c lu s io n s b a se d u p o n so m e o th e r u n sta te d c o n sid e r a tio n s. T o c o n c lu d e h is d e m o n str a tio n o f th e in c o h e r e n t stru ctu re o f c o n te m ­ p o ra ry a d m in istr a tiv e la w , E d le y le a d s u s th r o u g h th a t n o to r io u s ju r is­ p ru d en tia l sw a m p k n o w n a s “ sc o p e o f ju d ic ia l r e v ie w ,” c o n c lu d in g , as h a v e so m a n y o th e r s ,5 th a t a c e n tu r y o f ju d ic ia l an d c o n g r e ssio n a l w o r d sm ith in g h a s left a le g a c y o f o n ly c o n fu sio n . T h e se c o n d h a lf o f th e b o o k is d e v o te d to c o n sid e r in g v a r io u s p o s ­ sib le rem e d ie s fo r th is sta te o f in c o h e r e n c e . In C h a p ter F iv e , E d le y su r v e y s sev era l r e m e d ia l str a te g ie s, in c lu d in g sta tu to r y in te r p r e ta tio n b a sed a p p r o a c h e s e x e m p lifie d b y th e w o r k o f L o u is Jaffe,6 th e in terest rep r e se n ta tio n m o d e l sk e tc h e d m o st fu lly b y R ic h a r d S te w a r t,7 b u ­ r e a u cra tic r a tio n a lity th e o r ie s o f th e so rt e x p lic a te d in th e w o r k o f Jerry M a s h a w ,8 an d th e r e d u c tio n ist a p p r o a c h o f K e n n e th C u lp D a ­ v is .9 N o t su r p r isin g ly , E d le y fin d s a ll o f th e se a lte r n a tiv e str a te g ie s u n su c c e ssfu l. T h e first th ree th e o r ie s e sse n tia lly resta te th e th r e e p arts o f th e tr ic h o to m y , b u t e a c h fa ils a c c o r d in g to E d le y b e c a u se it p r o ­ v id e s n o e sc a p e fro m th e m o d e l’s d e sc r ip tiv e an d c o n c e p tu a l fa ilin g s. D a v is ’ p er v a siv e “ r e a so n a b le n e ss” sta n d a r d a v o id s th e in c o m p le te n e ss o f th e o th e r th e o r ie s, b u t d o e s so b y m e r e ly resu rrectin g th e tr ic h o t­ o m y u n d er th e n a m e o f c o m p a r a tiv e in stitu tio n a l c o m p e te n c e . In th e final tw o c h a p te r s, E d le y fin a lly u n v e ils h is o w n p r o p o se d re m e d y for th e tr ic h o to m y -in fe c te d in c o h e r e n c e o f a d m in istr a tiv e law . H e b e g in s b y o fferin g a “ m o d e st a g e n d a ” (p. 169) o f in c r e m e n ta l step s, su b su m e d u n d e r th e h e a d in g “ h a rd er lo o k ” rev iew . E d le y a c k n o w l­ e d g e s th e a p p a ren t c o n tr a d ic tio n o f tr y in g to sh o r e up a c o n c e p tu a l str u c tu r e th a t h e h a s sp e n t 170 p a g e s d ism a n tlin g (p. 170). B u t h e r e c o g n iz e s th a t m o st c o u r ts an d c o m m e n ta to r s w ill find it im p o ssib le to to ss a w a y th e c o n c e p tu a l c r u tc h e s th e y h a v e lea n ed o n fo r so lo n g . trative Procedure Reform, 118 U. Pa . L. R ev . 485 (1970); Adjudication in the D evelopm ent o f A dm inistrative Policy,

Shapiro, The Choice o f R ulem aking or 78 H arv . L. Rev. 921 (1965). 5. See, e.g., 5 K. D avis, A dministrative Law Treatise § 29 (2d ed. 1984); Gellhom & Robinson, Perspectives on A dm inistrative Law, 75 Colum. L. Rev . 771, 780-81 (1975). 6. See L. Jaffe, Judicial Control of A dministrative A ction (1965); Jaffe, The Illu ­ sion o f the Id ea l Administration, 86 Harv . L. R ev . 1183 (1973). 7. See Stewart, The R eform ation o f Am erican A dm inistrative Law, 88 Harv. L. Rev . 1667 (1975). 8. J. Mashaw , Bureaucratic Justice (1983); Mashaw, The M anagem ent Side o f Due Process: Som e Theoretical an d Litigation Notes on the Assurance o f Accuracy, Fairness and Tim e­ liness in the A djudication o f Social Welfare Claims, 59 Cornell L. R ev . I l l (1974).

9. K. D avis, supra note 5, § 29:14 at 392-93.

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It is to th is a u d ie n c e th a t th e in c r e m e n ta l r e fo r m s o f “ h a r d e r lo o k ” rev iew are a d d ressed . T o th e e x te n t th a t c o u r ts p e r sist in u sin g tr ie h o to m o u s te m p la te s as th e m e a su r e o f a d m in istr a tiv e a c tio n , E d le y ’s p le a is th a t th e y u se th e m w ith g rea ter d isc r im in a tio n an d in c o m b in a tio n . C o u r ts sh o u ld lo o k se a r c h in g ly b e h in d th e fa c a d e o f “ fa ir n e ss,” “ e x p e r tis e ,” a n d “ p o litic a l c h o ic e ” to se e w h e th e r a n d to w h a t e x te n t th e a g e n c y h a s in fa ct p ro p e r ly a n d s e n s itiv e ly u tiliz e d th e m e th o d o lo g ie s a sso c ia te d w ith th o se v irtu es. T h e m o s t in te r e stin g a p p lic a tio n o f th is o th e r w ise u n rem a rk a b le su g g e stio n is E d le y ’s d is c u s s io n o f h o w c o u r ts sh o u ld treat a g e n c ie s ’ p o litic a l c h o ic e s. R e v ie w in g c o u r ts r a rely a c k n o w le d g e th e o p e r a tio n o f p o litic a l c o n sid e r a tio n s in a g e n c y d e c is io n m a k in g , an d w h e n th e y d o , th e y o fte n e x h ib it a p a r tic u la r ly s im p lis tic o r r o ­ m a n tic iz e d v ie w o f a d m in istr a tiv e p o lit ic s .10 E d le y c a lls o n th e c o u r ts to c o n fr o n t th e o p e r a tio n o f p o litic s in a d m in istr a tio n h e a d o n , in th r e e w a y s. F ir st, c o u r ts s h o u ld d e m a n d th a t a g e n c ie s d is c lo s e th e p o litic a l c o n sid e r a tio n s — b o th th e id e o lo g i­ ca l or p a rtisa n p r e fe r e n c es a n d th e in te r e st-g r o u p a c c o m m o d a tio n s — th a t p la y e d a r o le in th e d e c is io n m a k in g p r o c e ss. S e c o n d , c o u r ts sh o u ld “ reg u la te th e m ix o f p o litic a l a n d n o n p o litic a l d e c is io n m a k in g p a r a d ig m s” (p. 1 96) b y d e fin in g th e c ir c u m s ta n c e s u n d e r w h ic h a n d th e e x te n t to w h ic h p o litic s m a y p r o p e r ly p la y a ro le. T h ir d , c o u r ts sh o u ld p o lic e th e “ q u a lity ” o f th e a g e n c y ’s fo r a y s in to th e p o litic a l w o rld b y req u irin g th e a g e n c y to d e m o n str a te , fo r e x a m p le , th a t it c o n s u lte d w ith all sig n ific a n t in te r e sts, o r th a t its d e c is io n e m b o d ie s a c le a r ly e x p r e sse d e le c to r a l m a n d a te o r c o n g r e s s io n a l p r e fe r e n c e (p p . 19 6 -9 9 ). T h e heart o f E d le y ’s a r g u m e n t is th e fin al c h a p te r , in w h ic h h e a b a n d o n s th e c ra b b ed p o stu r e o f c r itic a n d tin k e r e r , a n d a ssu m e s th e v isio n a r y sta n c e fo r e sh a d o w e d fo r o v e r 2 0 0 p a g e s. In th is “ s p e c u la ­ tiv e ” e ssa y , E d le y c a lls u p o n th e ju d ic ia r y to “ m o v e a w a y fr o m its a n a c h r o n istic fo c u s o n d isc r e tio n a n d fa c e d ir e c tly th e p r o b le m s o f so u n d g o v e r n a n c e ” (p. 2 1 3 ). In E d le y ’s b r a v u ra n e w w o r ld , a “ r e in v e n te d ” ju d ic ia r y w o u ld b e c o m e a fu ll p a r tn e r 11 in th e p o li-

10. Compare the opinions of Justices White (for the Court) and Rehnquist (partially dissent­ ing) in Motor Vehicle Mfrs. Assn. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 32-57, 57-59 (1983). In striking down a decision of the Transportation Department to rescind a motor vehicle safety standard mandating the installation of passive restraints, Justice White appeared to judge the rescission solely as an exercise in technical expertise, and made no mention of its political dimension. Justice Rehnquist, by contrast, expressly noted the part played by the election of Ronald Reagan and the resulting alteration in the weights assigned by the new administration to the costs and benefits of a passive restraint standard. 11. Pp. 136, 213-14. Edley struggles to find the precise metaphor to capture his thought. He seems most fond of the “partnership” image invoked by Judge Leventhal in Greater Boston Television Corp. v. FCC, 444 F.2d 841, 851-52 (D.C. Cir. 1970), cert, denied, 403 U.S. 923 (1971), and repeated frequently by subsequent courts and commentators. See, e.g., Natural Re­ sources Defense Council, Inc. v. SEC, 606 F.2d 1031, 1048 (D.C. Cir. 1979); Gardner, F ederal Courts a n d Agencies: An A u d it o f the Partnership Books, 75 Colum . L. R ev . 800 (1975); Sha­

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c y m a k in g p r o c e ss o f g o v e r n m e n t, sh a r in g w ith th e a d m in istr a tiv e an d le g isla tiv e b r a n c h e s th e r e sp o n sib ility to m a k e g o v e r n m e n t m o r e effec­ tiv e at c o p in g w ith th e m a ssiv e ly c o m p le x p r o b le m s it d a ily c o n fr o n ts. T h e g o a l o f c o n tr o llin g b u r e a u c r a tic d isc r e tio n b e q u e a th e d to a d m in is­ tra tiv e la w b y th e N e w D e a l is n o lo n g e r up to th e ta sk , if it ev e r w as, a c c o r d in g to E d le y . T h e a n tid isc r e tio n p ro ject, w ith its stilte d c o n c e p ­ tio n s o f in stitu tio n a l ro le s, is at b e st an in d ir e c t m e th o d an d a t w o r st a p erv erse m e th o d o f p r o m o tin g so u n d g o v e r n a n c e . S ep a ra tio n o f p o w ­ ers th in k in g m u st e m b r a c e a m u ltifu n c tio n a l c o n c e p tio n o f a d m in istr a ­ tio n an d a c o m p a r a b ly e n c o m p a ssin g c o n c e p tio n o f th e ju d ic ia l ro le in r e v ie w in g its h a n d iw o r k . In th e b a la n c e o f th e c o n c lu d in g ch a p ter, E d le y offers s o m e s u g g e stio n s o n h o w a r e v ie w in g c o u r t w o u ld g o a b o u t ela b o r a tin g n o r m s o f so u n d g o v e r n a n c e a n d h o w th e ju d ic ia r y c o u ld b e b e tte r e q u ip p e d , b y tr a in in g a n d ex p ert a ssista n c e , fo r th e d e m a n d s o f su c h a c h a lle n g in g a ssig n m e n t. II T h e su c c e ss o f E d le y ’s u n d e r ta k in g d e p e n d s o n th e a n sw e r s to th ree q u estio n s: h a s h e a c c u r a te ly c h a r a c te r iz e d th e u n d e r ly in g str u c ­ tu re o f a d m in istr a tiv e la w , h a s h e c o n v in c in g ly d e m o n str a te d its in c o ­ h e r e n c e , a n d h a s h e c o n str u c te d an a ttr a c tiv e altern ative? I w o u ld an sw er: m o s tly y e s, m o stly n o , an d m o stly n o. In h is se a r c h fo r th e d e e p str u c tu r e o f th e la w o f ju d ic ia l rev iew , E d le y q u ite c o n v e n tio n a lly lo o k s to th e la n g u a g e o f ju d ic ia l o p in io n s in c a se s r e v ie w in g a g e n c y d o in g s .12 U n fo r tu n a te ly , c o u r ts te n d to be rem a rk a b ly in a r tic u la te a b o u t th e c o n sid e r a tio n s th a t in fo rm th eir c h o ic e o f r e v ie w in g p o stu re. T o th e ex te n t th a t th e y d o a tte m p t to a r tic u la te th o s e c o n sid e r a tio n s, th e y in v o k e a w id e v a riety o f a n a lo ­ g ies, m e ta p h o r s, a n d ru les o f th u m b to fill th e c o m m o d io u s in te r stic e s o f p o sitiv e la w .13 T h e r e la tio n sh ip b e tw e e n th e se ju d ic ia l d ic ta an d

piro, A dm inistrative Discretion: The N ext Stage, 92 Yale L.J. 1487, 1507 (1983). Yet he ac­ knowledges that, unlike partners, courts and agencies stand in a necessarily hierarchical relationship, comparable to that of a corporation’s chief executive officer-vice president. Pp. 21415. 12. Edley considers the possibility that the structure of administrative law might be located only in “a higher rationality” not expressed in judicial opinions. P. 129. But he dismisses the possibility on the grounds that there is no evidence of the increasing doctrinal clarity and articu­ lation that one would expect a hidden rationality to produce. 13. For example, whether the contested action lies within the scope of “administrative rou­ tine,” Gray v. Powell, 314 U.S. 402, 411 (1941), or the agency’s “everyday experience,” NLRB v. Hearst Pub., Inc., 322 U.S. Ill, 130 (1944); whether there is an especially pressing need for litigation to terminate immediately, O’Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 508 (1951); whether Congress has “directly spoken to the precise question,” Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842 (1984); whether Congress has cre­ ated a presumption in favor of or against regulation, Motor Vehicle Mfrs. Assn. v. State Farm Mut. Ins. Co., 463 U.S. 29, 42 (1983); whether the agency’s determination is “judgmental or predictive,” FCC v. National Citizens Comm, for Broadcasting, 436 U.S. 775, 813-14 (1978); or whether the contested agency action involves the choice of remedy or sanction to impose for an established violation, Butz v. Glover Livestock Commn. Co., 411 U.S. 182 (1973).

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E d le y ’s tr ic h o to m y is n o t o b v io u s to th e n a k e d ey e. C o u r ts ra rely re­ fer to a th ree-p a rt ta x o n o m y o f le g itim a tin g c o n c e p ts. In ste a d , th e ir c o n str u c ts are o fte n d ic h o to m o u s — su c h a s th e c o m m o n d is tin c tio n s b etw e e n r u le m a k in g a n d a d ju d ic a tio n , fin d in g s o f fa c t a n d c o n c lu s io n s o f law , o r in d e p e n d e n t re v ie w a n d d e fe r e n tia l r ev iew . M o r e c o m ­ m o n ly , c o u r ts sim p ly in v o k e u n ita r y c o n c e p ts — su c h as “ e x p e r tis e ” o r “ p o lic y ” — w ith o u t sp e c ify in g th e ty p o lo g y o f w h ic h th e y are a m em b er. S ta tu to r y la w a lso d o e s n o t su p p o r t E d le y ’s c o n str u c t, b e ­ ca u se C o n g r e ss sp e a k s in a lm o st as m a n y v o ic e s as th e c o u r ts w h e n it c o m e s to sc o p e o f ju d ic ia l r e v ie w .14 T o th e e x te n t th a t th is lin g u istic r u b b le rests o n a n y sin g le c o n c e p ­ tu a l fo u n d a tio n , h o w e v e r , I th in k E d le y h a s g o t it rig h t. D e s p ite th e g en era l le v e l o f ju d ic ia l in a r tic u la te n e ss, c r u d e im a g e s o f id e a liz e d j u ­ d ic ia l, scie n tific , a n d p o litic a l d e c is io n m a k in g p r o c e sse s lu rk a t o r c lo s e ly b e n e a th th e su r fa c e o f m o s t ju d ic ia l o p in io n s. B e h in d th e j u d i­ cia l d efe r e n c e to O S H A ’s “ e x p e r tis e ,” fo r e x a m p le , o n e c a n fa in tly d is ­ cern an im a g e o f th e sc ie n tist in h er la b o r a to r y o r th e p o lic y a n a ly st at h is c o m p u te r . S im ila r ly , a g g r e ssiv e ju d ic ia l r e v ie w o f N L R B o rd ers o fte n se e m s to be b a se d o n an im a g e o f th e a g e n c y as a c o m m o n la w co u rt. T h u s, w h ile ju d ic ia l a n d le g is la tiv e r h e to r ic d o e s n o t n e a tly m a p o n to E d le y ’s fr a m e w o r k , o n e m u st c o n c lu d e , w ith h im , th a t a sep a r a tio n o f p o w e r s e th o s d o e s in d e e d p e r m e a te ju d ic ia l th in k in g . O n e m u st a lso a g ree w ith E d le y th a t th e se p a r a tio n o f p o w e r s, w h a te v e r its a ttr a c tio n s as a r h e to r ic a l d e v ic e , h a s n o t, in a p p lic a tio n , p ro d u c e d a very sa tisfa c to r y ju r isp r u d e n c e o f ju d ic ia l r e v ie w . J u d g e s all to o o fte n m a k e sim p listic , se le c tiv e , a n d c o n c lu s o r y u se o f th e tr i­ c h o to m y . A m o n g th e n u m e r o u s illu str a tio n s sp r in k le d th r o u g h o u t th e b o o k , p erh a p s th e m o st te llin g a re th o s e in w h ic h tw o ju d g e s lo o k at th e sa m e a g e n c y a c tio n a n d se e tw o d ifferen t th in g s. T h u s, in Motor

Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co.,1516J u stic e W h ite lo o k e d at th e r e sc issio n o f th e a irb a g ru le an d sa w b ad scien ce; J u stic e R e h n q u is t sa w g o o d p o litic s (a n d a c c e p ta b le sc ie n c e ). In Association of National Advertisers, Inc. v. FT C 16 J u d g e T a m m sa w th e F T C s p r o c e e d in g s o n c h ild r e n ’s a d v e r ­ tisin g as a p o litic a l p r o c e ss a p p r o p r ia te fo r an “ u n a lte r a b ly c lo s e d m in d ” te st for p r e ju d g m e n t,17 w h ile J u d g e M a c K in n o n sa w su fficien t tra p p in g s o f th e ju d ic ia l p r o c e ss to c a ll fo r a p p lic a tio n o f a m o r e a d ju ­ d ic a to r y “ su b sta n tia l b ia s” s ta n d a r d .18 D e s p ite th e r e le n tle ssn e ss o f h is a tta c k o n th e tr ic h o to m y , h o w -

14. See, for example, the variety of review standards contained in the Administrative Proce­ dure Act, 5 U.S.C. § 706 (1988). 15. 463 U.S. 29 (1983). 16. 627 F.2d 1151 (D.C. Cir. 1979), cert, denied, 447 U.S. 921 (1980). 17. Association o f Natl. Advertisers, 627 F.2d at 1154, 1170-74. 18. Association o f Natl. Advertisers, 627 F.2d at 1181-82, 1197.

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ever, E d le y c a n n o t q u ite b rin g h im s e lf to c o n sig n it to th e scra p h eap . In h is in tr o d u c tio n , h e c h a r a c te r iz e s th e tr ic h o to m y as “ u n w o r k a b le as a fo u n d a tio n for d o c tr in e ” (p. 4 ) a n d as a c a u se fo r th e “ in tr a c ta b ility ” o f d o c tr in a l p r o b le m s (p. 8), se e m in g to fo r e sh a d o w its o u tr ig h t rejec­ tio n . B u t in th e b o d y o f th e w o rk h is la n g u a g e is so m e w h a t m o re te m p e r a te ,19 su g g e stin g th a t th e tr ic h o to m y m a y b e sa lv a g e a b le after all. In d ee d , E d le y d e v o te s an en tir e c h a p te r to su g g e stin g w a y s to m a k e tr ic h o to m y -in sp ir e d r e v ie w m o re se r v ic e a b le , a n d in h is final, m o st u to p ia n ch a p te r , th e o n c e -c o n d e m n e d tr ic h o to m y is m ir a c u ­ lo u s ly r e h a b ilita te d as a “ tr io ” — th a t is, as a p rin cip le o f “ so u n d g o v e r n a n c e ” th a t “ req u ire[s] a c o m b in a tio n o f a ll th ree d e c isio n m a k ­ in g p a ra d ig m s in c lu d e d in th e tr ic h o to m y ” (p. 2 2 2 ). T h is a m b iv a le n c e le a v e s th e read er w o n d e r in g e x a c tly h o w E d le y w o u ld o v e r c o m e th e c o n c e p tu a l fa ilin g s so p a tie n tly a d u m b ra ted in th e earlier ch a p te r s. H is a p p a ren t a n sw e r is to “ [b jlen d a n d [b ja la n c e ” th e th ree m o d e ls in to a n “ in te g r a te d tr io .” 20 A t first b lu sh , th e a ttr a c tio n o f th is stra te g y is u n d e n ia b le . W e a ll k n o w th a t real life a d m in istr a tiv e d e c isio n m a k in g is c o m p le x a n d m u ltid im e n sio n a l. B u rea u cra ts d o (or sh o u ld ) try to fo llo w th e c o m m a n d s o f a p p lic a b le c o n stitu tio n a l an d sta tu to r y p r o v isio n s a n d ju d ic ia l p re c e d e n ts, treat lik e c a se s alik e, w o r r y a b o u t p r e c e d e n tia l effects, c o n sid e r rea so n a b le a lte r n a tiv e c o u r se s o f a c tio n , u tiliz e a p p r o p r ia te a n a ly tic a l an d e v a lu a tiv e m e th ­ o d o lo g ie s , sea rch fo r relia b le d a ta , a c c o m m o d a te sig n ifica n t o r g a n iz e d an d u n o r g a n iz e d in te r e st g r o u p s, an d v in d ic a te d e e p ly h e ld p erso n a l, p a rtisa n , or o r g a n iz a tio n a l c o n c e p tio n s o f g o o d p u b lic p o lic y . T h e p r o d u c t o f su c h a d e c isio n m a k in g p r o c e ss c a n n o t se n sib ly b e fo rced in to th e P r o c r u ste a n b ed o f a sin g le p a ra d ig m . T o th e e x te n t th a t c o u r ts in fa ct b e h a v e th is w a y ,21 th e “ b le n d in g ” stra teg y se e m s an u n ­ d e n ia b le im p r o v e m e n t. B u t o n c lo se r in sp e c tio n , E d le y ’s “ b le n d in g ” stra teg y is rea lly n o a n sw er a t a ll to th e tr ic h o to m y ’s a sserted c o n c e p tu a l fa ilin g s. O n e c a n n o t lo g ic a lly c o n str u c t a c o h e r e n t str u c tu r e from th ree in c o h e r e n t c o m p o n e n ts. I f th e th ree p a r a d ig m s’ c o g n itiv e sty le s are so in ter-

19. For example, he characterizes the conceptual failings as “shortcomings” that produce “confusion,” “arbitrary” choices, and “unstable” conclusions. P. 73. 20. Pp. 222-23. See also his discussion of “paradigm mix” at pp. 192-96, 202-03. 21. Edley claims that such inappropriate “pigeonhol[ing]” is the “practical effect of most doctrinal reasoning.” P. 223. I disagree. While it is true that courts selectively and simplistically invoke concepts like “expertise” and “policy” to justify their conclusions, I do not think that they are insensitive to the complexity of the decisionmaking processes they examine. Simply because, for example, Justice White focused on the analytical aspects of the passive restraint rescission in State Farm hardly means that he was unaware of or even unsympathetic with its political motivation. A plausible reading of his view is that the agency may, or should, take political considerations into account, so long as it establishes an evidentiary and analytical basis for concluding that its action is not inconsistent with the statute. Similarly, Judge Tamm’s char­ acterization of the FTC’s action contested in Association o f N ational Advertisers as “rulemaking” hardly implies that he was unaware of the mix of cognitive styles that inevitably enters into a proceeding to regulate children’s advertising.

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tw in e d th a t th e y lite r a lly “ c o lla p s e ra th e r th a n m e r e ly m in g le ” (p. 135), “ in te g r a tin g ” th e m is m e a n in g le ss. T h e y are, b y E d le y ’s o w n a sse r tio n , a lrea d y e sse n tia lly “ in te g r a te d ” in to a fo r m le ss m a ss. S im i­ larly, if th e m o d e ls e a c h su ffer fro m a ttr ib u tiv e d u a lity , ta k in g th e m in c o m b in a tio n w ill n o t m a g ic a lly p r o d u c e a ttr ib u tiv e sin g u la r ity . I n te ­ g ra tin g th e m o d e ls in to a c o m p o s ite p r o c e d u r e w o u ld se e m as lik e ly to m a g n ify th e a ttr ib u tiv e d u a lity , b y p o s tin g e v e n m o r e p lu se s a n d m i­ n u se s o n th e m o ra l ta lly sh e e t, a s to d a m p e n a ttr ib u tiv e d u a lity , b y c a n c e llin g o u t th e p lu se s o r th e m in u se s. E d le y offers tw o a n sw e r s to th e a p p a r e n t lo g ic a l im p o s s ib ility o f h is b le n d in g str a te g y . T h e first is a r a th e r o ff-h a n d a n d h a lf-h e a r te d su g g e s tio n n ear th e e n d o f C h a p te r 6 th a t c o u r ts sh o u ld g e n e r a liz e th e c o st-b e n e fit c a lc u lu s a n n o u n c e d b y th e S u p r e m e C o u r t in Mathews v. Eldridge.22 W ith o u t a d d r e ssin g s o m e o f th e fo r m id a b le th e o r e tic a l a n d p r a c tic a l d ifficu lties w ith th e Eldridge fo r m u la ,23 th is p r e sc r ip tio n in sp ires little c o n fid e n c e as a w a y o u t o f th e c o n c e p tu a l th ic k e t. O n e w o u ld h a v e e x p e c te d E d le y to e x p e n d c o n sid e r a b ly g re a te r e n e r g y o n a p ro b le m a p p a r e n tly so c r u c ia l to h is th e sis. T h e se c o n d , a n d b y far th e m o r e im p o r ta n t, a n sw e r is “ so u n d g o v ­ e r n a n c e ” rev iew . E d le y is c o n fid e n t th a t c o u r ts, lib era ted fr o m c o n fin ­ in g se lf-im p o se d n o tio n s o f in s titu tio n a l c o m p e te n c e , ca n fa sh io n o v e r tim e a c o m m o n la w o f so u n d g o v e r n a n c e . A s th e y d o , p r in c ip le s fo r d efin in g th e p ro p er m ix a n d b le n d o f d e c is io n m a k in g m o d e ls w ill em erg e. I f h e is rig h t, h e is a p r o p h e t. I f h e is w r o n g , h e is a d rea m er. W h ic h is it? U n fo r tu n a te ly , E d le y ’s “ sp e c u la tiv e e s s a y ” s k e tc h e s o n ly th e d im ­ m e st o u tlin e o f w h a t “ n o r m s o f so u n d g o v e r n a n c e ” w o u ld a c tu a lly lo o k lik e o r w h e r e th e y w o u ld c o m e fr o m . M o s t o f th e c h a p te r is d e ­ v o te d to te llin g u s w h a t so u n d g o v e r n a n c e n o r m s w o u ld not lo o k lik e — n a m e ly , th e tr ic h o to m y — a n d w h y w e s h o u ld tru st c o u r ts to b e a b le to h a n d le th e jo b . P r e c io u s little sp a c e is d e v o te d to te llin g u s w h a t so u n d g o v e r n a n c e is. T h e m o s t r e v e a lin g p a ssa g e a p p e a r s in h is d is c u s s io n o f h o w a c o u r t m ig h t a p p r o a c h th e ta sk o f r e v ie w in g a h y ­ p o th e tic a l O S H A w o r k p la c e h e a lth sta n d a rd :

I would not object to a court requiring the agency to evaluate regulatory alternatives using cost-benefit analysis or the Ames test for bacterial mutagenicity or to do so in terms of impact on each of several classes of affected individuals or firms. These matters seem substantive and cer­ tainly inappropriate for courts steeped in separation of powers ethos. But if a judge is persuaded that action without such analysis might well be unsound, the court should require it: When an accessible norm of 22. 424 U.S. 319 (1976). See pp. 210-12. 23. See, e.g., Mashaw, A dm inistrative D ue Process as Social-Cost Accounting, 9 Hofstra L. R ev. 1423 (1981); Mashaw, The Suprem e Court's D ue Process Calculus fo r A dm inistrative A dju ­ dication in Mathews v. Eldridge: Three Factors in Search o f a Theory o f Value, 44 U. Chi . L. Rev . 28 (1976).

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sound decision m aking exists, or when the court can attempt to form u­ late one w ithout prejudice to the power o f agency or legislature to cor­ rect a judicial m isconception, a conscientious judge should act on personal conviction, [p. 231; footnote om itted] T a k en at fa c e v a lu e , th is is an ex tr a o r d in a r y sta te m e n t. E d le y w o u ld h a v e r e v ie w in g ju d g e s su b stitu te th e ir ju d g m e n t for th a t o f a d ­ m in istr a to r s, o n th e b a sis o f personal conviction a b o u t “ w h a t s h o u ld b e req u ired in o rd er to m a k e s o u n d p u b lic p o lic y ” (p. 2 3 1 ). C an h e m ea n th is? I f r e v ie w in g ju d g e s sh o u ld im p o se u p o n an a g e n c y th eir p e r so n a l v ie w s a b o u t d e c isio n m a k in g m e th o d o lo g ie s , sh o u ld th e y n o t a lso im ­ p o se th eir c o n v ic tio n s r eg a rd in g th e a lte r n a tiv e s to b e c o n sid e r e d , th e in te r e sts to b e c o n su lte d , th e fa c to r s to b e w e ig h e d , a n d th e v a lu e s an d w e ig h ts to b e a ssig n ed ? W ill th e p a g e s o f th e Federal Reporter b e filled w ith th e id e o lo g ic a l, p a rtisa n , e v e n r e lig io u s r u m in a tio n s o f ju d g e s, R e p u b lic a n s an d D e m o c r a ts , p r o -life r s a n d p r o -c h o ic e r s, fe m in ists an d m a sc u lin ists, e c o lo g is ts a n d e c o n o m is ts , sc ie n c e b uffs an d m a n a g e m e n t buffs, alike? W ill th e c h a m b e r s o f th e U .S . C o u r ts o f A p p e a ls c o m e to rese m b le th e se m in a r r o o m s o f th e K e n n e d y S c h o o l o f G o v e r n m e n t? T h is is su r e ly a ca r ic a tu r e , b u t h o w m u c h o f on e? T o h is cred it, E d le y d o e s n o t sh r in k fr o m th e e y e b r o w -r a isin g im p lic a tio n s o f h is p r o p o sa l. H e r e c o g n iz e s th a t h e w ill b e a c c u se d o f u n le a sh in g ju d ic ia l “ w illfu ln e s s ” (p . 2 3 1 ) o n th e la n d . H is r e sp o n se is n o t d en ia l, b u t ju s ­ tifica tio n . H is first lin e o f d e fe n se is th a t o p e n w illfu ln e ss is p refera b le to th e h id d e n fo r m o f w illfu ln e ss th a t c h a r a c te r iz e s m u c h ju d ic ia l d e c i­ sio n m a k in g to d a y (p. 2 3 1 ). B r in g in g judges* u n sp o k e n p o lic y c o n v ic ­ tio n s to th e su rfa ce, E d le y a rg u es, w ill p r o m o te a c o n str u c tiv e d ia lo g u e a m o n g th e b r a n c h e s a b o u t th e m e a n in g o f so u n d g o v e r n a n c e in p a rticu la r c o n te x ts. It is u n d o u b te d ly tr u e th a t, in a d m in istr a tiv e la w as in o th e r field s o f la w , ju d g e s o fte n e x e r c ise th eir p e r so n a l c o n ­ v ic tio n s u n d er c o v e r o f o p e n -te x tu r e d d o c tr in e a n d c o n c lu so r y lab els. T h e o r th o d o x r e m e d y , h o w e v e r , is to tig h te n ra th er th a n lo o se n th e d o c tr in a l c o n str a in ts. T h e S u p r e m e C o u r t h a s b een d o in g e x a c tly th a t, in a series o f d e c isio n s th a t se v e r e ly c o n str a in th e d isc r e tio n o f ju d g e s to s e c o n d -g u e ss a g e n c y d e c isio n s r e g a r d in g su c h th in g s as th e c h o ic e o f p o lic y m a k in g p r o c e d u r e ,24 th e e x e r c ise o f p r o se c u to r ia l d is­ c r e tio n ,25 a n d th e in te r p r e ta tio n o f a u th o r iz in g s ta tu te s .26 E d le y c r iti­ c iz e s th is rec e n t tren d a s a b d ic a tio n o f th e c o u r ts ’ o b lig a tio n to p a r tic ip a te in th e se a r c h fo r so u n d g o v e r n a n c e (p. 149). B u t th a t a n ­ sw e r m e r e ly resta te s th e u n d e r ly in g p u z z le : w h a t is so u n d g o v e r n a n c e , a n d w h a t is th e p ro p er r o le o f c o u r ts in p r o m o tin g it?

24. E g ., Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519 (1978); NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). 25. E.g., Heckler v. Chaney, 470 U.S. 821 (1985). 26. E.g., Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

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E d le y ’s se c o n d d e fe n se is th a t th e d a n g e r o f ju d ic ia l w illfu ln e ss is h e ld in c h e c k b y th e v ery str u c tu r e o f th e ju d ic ia r y . T h e p o litic a l p r o ­ c e ss o f ju d ic ia l a p p o in tm e n t h e lp s a ssu r e th a t th e “ p lu r a lism o f p o lit­ ica l an d so c ia l life g e n e r a lly w ill b e r e fle c te d in th e w ills o f ju d g e s ” (p. 2 3 3 ). T h is is an e n o r m o u sly c o n te s ta b le p r o p o sitio n th a t req u ires m u c h g rea ter e la b o r a tio n th a n E d le y p r o v id e s. T h e r e is m u c h r ea so n to d o u b t its e m p ir ic a l p rem ise. J u d g e s a re d r a w n fr o m a p r o fe ssio n a l e lite th a t is n o t lik e ly to b e r e p r e se n ta tiv e o f th e la rg er p o p u la c e , e v e n in th e lo n g run. In th e m id d le ru n — a s w e h a v e se e n in th e p a st d e c a d e — th e id e o lo g y o f a p a r tic u la r A d m in is tr a tio n o r s e q u e n c e o f A d m in istr a tio n s ca n sh a r p ly tilt th e p o litic a l o r ie n ta tio n o f th e j u d ic i­ ary. G iv e n th e ju d ic ia r y ’s lo n g te n u r e o f o ffice, th e g a p b e tw e e n th e ju d ic ia r y ’s an d th e s o c ie ty ’s p r e fe r e n c e str u c tu r e s m a y w id e n o v e r tim e a n d p ersist for lo n g p erio d s. E v e n i f E d le y w ere c o r r e ct, as an e m p ir ic a l m a tte r , th a t th e j u d ic i­ ary fa ith fu lly m irrors th e “ p lu r a lis m ” o f th e la rg er s o c ie ty , w h y , a s a n o r m a tiv e m a tter, w o u ld th a t fa c t ju s tify th e e x e r c ise o f “ p e r so n a l c o n v ic tio n ” b y in d iv id u a l ju d g e s? W e ju s tify th e e x e r c ise o f “ w illfu l­ n e s s ” b y in d iv id u a l le g isla to r s b y r e fe r en ce to th e ir e le c to r a l a c c o u n ta ­ b ility an d th e le v e lin g effect o f la r g e -n u m b e r v o tin g .27 F e d e r a l ju d g e s are n o t e x p o se d to e le c to r a l re c a ll, o r fo r th a t m a tte r a n y p o litic a lly a c c o u n ta b le fo rm o f r e c a ll sh o r t o f im p e a c h m e n t. N o r d o fed era l ju d g e s ex e r c ise a u th o r ity as m e m b e r s o f la r g e g r o u p s, b u t ra th er sit o n ly as in d iv id u a l p r e sid in g officers o r a s m e m b e r s o f sm a ll a p p e lla te p a n els. In su c h a str u c tu r e ju d ic ia l “ p lu r a lis m ” w ill p r o d u c e n o t le v e l­ in g , b u t fr a g m e n ta tio n a n d d iv e r g e n c e . T h e o u tc o m e s a n d sta te d ra ­ tio n a le s o f ju d ic ia l d e c isio n s w ill v a r y w id e ly , d e p e n d in g o n th e c o n v ic tio n s o f th e ju d g e o r p a n e l in v o lv e d . A lth o u g h r e v ie w b y th e C o u r ts o f A p p e a ls a n d th e S u p r e m e C o u r t c o u ld th e o r e tic a lly c o n ­ stra in th e d eg ree o f v a r ia tio n , it w o u ld d o so o n ly b y su b stitu tin g o n e u n r e p r e se n ta tiv e set o f p e r so n a l ju d ic ia l c o n v ic tio n s for a n o th e r . F u r ­ th e r m o r e , w e k n o w th a t th e S u p r e m e C o u r t h a s o n ly v e r y lim ite d p r a c tic a l c a p a c ity to p o lic e d e v ia tio n s a m o n g th e c o u r ts o f a p p e a ls .28 E d le y ’s th ird a r g u m e n t in d e fe n se o f th e ju d ic ia l w illfu ln e s s in h e r ­ en t in so u n d g o v e r n a n c e r e v ie w is th e c a p a c ity fo r “ c o r r e c tio n ” o f j u ­ d ic ia l errors b y in te r a c tio n w ith a g e n c ie s a n d C o n g r e ss (p. 2 3 2 ). H e fo r e se e s a “ c o n tin u in g d ia lo g u e a m o n g th e b r a n c h e s” in an “ in te r a c ­ tiv e, d y n a m ic p r o c e ss o f g o v e r n a n c e ” p r o d u c e d b y th e sh e e r m u ltip lic ­ ity o f fo r u m s (p. 2 3 6 ). In th is p art o f h is d e fe n se , E d le y in tr o d u c e s tw o p rin c ip le s o f in stitu tio n a l restra in t. T h e le ss sig n ific a n t is th e fa ­ m ilia r p o in t th a t c o u r ts sh o u ld a v o id d e c id in g c a se s o n c o n s titu tio n a l

27. This, at base, is why the Supreme Court was correct in declaring unconstitutional the legislative veto. INS v. Chadha, 462 U.S. 919 (1983). 28. See Strauss, One H undred Fifty Cases p e r Year: Som e Im plications o f the Suprem e Court's L im ite d Resources fo r Ju dicial Review o f A gency Action, 87 C olum . L. R ev . 1093 (1987).

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g r o u n d s, to p erm it C o n g r e ss to o v e r r u le th e ir d e c isio n s. T h e m o r e sig n ifica n t is an e x h o r ta tio n th a t c o u r ts le a v e r o o m for th e e x e r c ise o f a d m in istr a tiv e d isc r e tio n o n rem a n d b y a v o id in g e x c e ssiv e ly sp e c ific o r o u tc o m e -d e te r m in a tiv e d e c isio n m a k in g m e th o d o lo g ie s (p. 2 3 2 ). T h u s, fo r ex a m p le , E d le y su g g e sts th a t a c o u r t sh o u ld tell an a g e n c y w h ic h in te r e sts m u st be r e p r e se n te d in a r e g u la to r y n e g o tia tio n ra th er th a n sp e c ify th e r e la tiv e w e ig h ts to b e a ssig n e d to th e v a rio u s in te r e sts p a r­ tic ip a tin g (p. 2 2 9 ). T h e r e are tw o d e fe c ts in th is lin e o f a r g u m e n t. F irst, th e te r m in o l­ o g y o f “ error c o r r e c tio n ” se e m s u tte r ly m isp la c e d . I f so u n d g o v e r n ­ a n c e is tru ly a m a tte r o f “ p e r so n a l c o n v ic tio n ,” th e issu e is n o t o n e o f c o r r e c tin g errors, b u t o f w ie ld in g p o w er. W h o e v e r h a s th e la st w o rd w in s. W h y , in a “ p o s t-tr ic h o to m y w o r ld ,” sh o u ld C o n g r e ss or th e a g e n c y h a v e th e la st w o rd ? 29 S e c o n d , “ d ia lo g u e ” is n o t c o stle ss. T h e d ia lo g u e E d le y e n v isio n s is a p r o tr a c te d , se q u e n tia l, m u ltifo r u m p r o ­ c e ss th a t ca n m a k e r a v e n o u s d e m a n d s o n th e r e so u rces o f its p a r tic i­ p a n ts. A n d th e w o r ld g o e s o n . W h ile ju d g e s, b u rea u cra ts, le g isla to r s, an d h ired g u n s p u rsu e th e ir c o llo q u y , w o r k e r s b rea th e u n r e g u la te d c a r c in o g e n s, o v e r r e g u la te d m a n u fa c tu r e r s lo se m a rk et share, a n d u n ­ p r o te c te d w ild e r n e ss d isa p p ea rs. T h e final a rro w in E d le y ’s q u iv er is in stitu tio n a l and p erso n a l c o m ­ p e te n c e . A t o n e p o in t, h e c h a r a c te r iz e s h im s e lf as “ u n u su a lly sa n ­ g u in e . . . th a t fed era l a p p e lla te ju d g e s are m o r e ca p a b le in m o re se n se s, b o th p r e se n tly a n d p o te n tia lly , th a n c r itic s m a in ta in ” (p . 2 3 7 ). T h is is a ra th er rem a rk a b le tu r n a r o u n d fo r so m e o n e w h o has d e v o te d n ea rly 2 0 0 p a g e s to b era tin g th e fed era l ju d ic ia r y for m a k in g an in c o ­ h e r e n t h a sh o f a d m in istr a tiv e la w for fifty years. In d eed , at o n e p o in t in C h a p ter 4 E d le y d e b u n k s J u stic e F r a n k fu r te r ’s p r o fe ssio n o f fa ith in th e c o m p e te n c e an d se lf-r e str a in t o f th e fed era l ju d ic ia r y .30 “ [M e r it o c r a t ic a p p o in tm e n ts ,” sn iffs E d le y , “ p ro b a b ly o c c u r o n ly b y a c c id e n t, an d a r tic le III te n u r e in su la te s th e m ista k e s and a llo w s m erit (s o m e h o w d e fin e d ) to fa d e .” 31 W ith su p p o r te r s lik e E d le y , w h o n e e d s c r itic s? 32

29. Edley might, although he does not, argue that the process he has in mind is more akin to the “deliberative” process envisioned by modern-day civic republicans such as Cass Sunstein. See, e.g., Sunstein, Beyond the Republican Revival, 97 Yale L. J. 1539 (1988). 30. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488-89 (1951). 31. P. 126 (footnote omitted). Edley defends his assertion that meritocratic appointments probably occur “only by accident” with these words: “This claim reflects my harsh view engen­ dered by experience as a White House and agency appointee in the Carter administration and as an alarmed observer of Reagan administration appointments.” P. 126 n.68. 32. The apparent variability of Edley’s views on judicial competence points up the complete absence in his book of any articulated theory of administrative or judicial motivation. For a recent example of the growing literature on this subject, with citations to earlier examples, see Bishop, A Theory o f A dm inistrative Law, 19 J. Legal Stud . 489 (1990). Without some positive theory of administrative and judicial motivation, one simply cannot decide whether and to what extent the actions of administrators require oversight and whether and to what extent judges can be trusted to provide that oversight.

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A b o u t th e o n ly e v id e n c e offered in C h a p te r S e v e n to su p p o r t E d le y ’s m a g ic a lly r esto red fa ith in j u d ic ia l c a p a b ility is a “ q u ic k [ ] ” (p. 2 3 9 ) su r v e y o f th e p e r fo r m a n c e o f fe d e r a l ju d g e s in th e c o u r se o f d e v is ­ in g an d e n fo r c in g “ str u c tu r a l in ju n c tio n s ” in in s titu tio n a l refo rm c a se s (p p . 2 5 2 -5 9 ). B u t as h e p o in ts o u t, fierce d e b a te p e r sists a b o u t w h e th e r a n d to w h a t e x te n t in stitu tio n a l r efo rm litig a tio n h a s b e e n s u c c e ssfu l a n d h o w to le g itim a te th e a c tio n s th a t m a n y ju d g e s h a v e ta k e n to b rin g a b o u t th o se r e s u lts .33 E v e n i f o n e a c c e p ts E d le y ’s v ie w o f in s titu ­ tio n a l refo rm litig a tio n , I q u e stio n w h e th e r it is an a p t a n a lo g y fo r th e jo b h e se ts b efo re th e fed era l c o u r ts. M o st str u c tu r a l d e c r e e s are d e sig n e d to r e m ed y p e r v a siv e g o v e r n m e n ta l v io la tio n s o f th e c o n s titu ­ tio n a l rig h ts o f a p o litic a lly v u ln e r a b le c la ss. T h e h ig h o r d e r o f th e u n d e r ly in g rig h t a n d th e s y s te m ic fa ilu r e o f th e p o litic a l b r a n c h e s to p r o te c t th a t rig h t ju stify a d e g r e e o f ju d ic ia l a c tiv ism th o u g h t in a p p r o ­ p ria te in m o r e c o n v e n tio n a l se ttin g s. I w o u ld m a in ta in th a t m o s t c a se s o f ju d ic ia l r ev iew o f a d m in istr a tiv e a c tio n fa ll se c u r e ly w ith in th e c o n ­ v e n tio n a l c a te g o r y .

I ll I c a n n o t h e lp b u t w o n d e r if I a m b e a tin g a str a w h o r se , so to sp eak . E d le y d o e s in d e e d u se th e str o n g la n g u a g e a n d p r o v o c a tiv e a r­ g u m e n ts th a t I h a v e c r itic iz e d . B u t lu r k in g v ery c lo s e b e n e a th th is b rave su rfa c e is a m u c h m o r e c a u tio u s v isio n o f th e ju d ic ia l ro le. H e a d v ise s c o u r ts to b e in c r e a sin g ly d e fe r e n tia l to a g e n c y d e c is io n s as th e y a p p r o a c h th e “ c o r e o f th e a d m in istr a to r ’s r o le ” (p . 2 2 9 ), to str u c tu r e th eir o rd er s to g iv e th e a g e n c y a n d e v e n C o n g r e ss a n a m p le o p p o r tu ­ n ity to “ co r r e c t a ju d ic ia l m is c o n c e p tio n ” (p. 2 3 1 ), a n d to sta y th e ir h a n d u n le ss th e y “ se e clearly h o w th e a g e n c y ’s d e c is io n m a k in g ca n b e im p r o v e d ” (p. 2 3 9 ). T h e se p a ssa g e s s u g g e s t a m u c h m o r e n u a n c e d c o n c e p tio n o f in stitu tio n a l ro le, a v isio n o f p o w e r s se p a r a te d fu n c tio n ­ a lly as w e ll as c h r o n o lo g ic a lly an d g e o g r a p h ic a lly . A s I read th e se p a ssa g e s, I c a n n o t h e lp b u t c o n c lu d e th a t E d le y ’s u to p ia w ill en d u p lo o k in g v ery m u c h lik e o u r o w n im p e r fe c t w o r ld . In th e sea r c h fo r “ n o r m s o f so u n d g o v e r n a n c e ,” w h e r e e lse b u t to se p ­ a ra tio n o f p o w e r s w o u ld ju d g e s lo o k fo r p r in c ip le s th a t sta n d a c h a n c e o f g en era l a cc e p ta n c e ? E d le y offers n on e; h is a r g u m e n t is r e so lu te ly a th e o r e tic a l. H e w o u ld h a v e c o u r ts ste e r th e ir v e sse l b y th e c o n s te lla ­ tio n o f “ so u n d g o v e r n a n c e n o r m s ” ; y e t h e offers u s n o g ra n d th e o r y o f s o c ie ty or o f th e sta te fro m w h ic h to d e r iv e th e ir c o n te n t. In an a g e o f a g g r e ssiv e ly id e o lo g ic a l a n d m e ta th e o r e tic a l leg a l sc h o la r sh ip , E d le y is

33. See, e.g., Chayes, The R ole o f the Judge in Public L aw Litigation, 89 Harv . L. R ev . 1281 (1976); Diver, The Judge as Political Powerbroker: Superintending Structural Change in Public Institutions, 65 Va. L. Rev . 43 (1979); Fiss, Foreword: The Forms o f Justice, 93 H arv . L. R ev . 1 (1979); Sturm, A N orm ative Theory o f Public L aw Rem edies, G eo. L.J. (forthcoming 1991).

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a th r o w b a c k to th e a p o litic a l d a y s o f h is L e g a l P r o c e ss m e n to r s.34 So, I c o n fe ss, am I .35 T o th e e x te n t th a t w e re a lly differ, it m a y b e o n ly in o u r rela tiv e a sse ssm e n t o f th e c o m p a r a tiv e in stitu tio n a l c o m p e te n c e o f c o u r ts and a g en cies. A s th e m a te r ia l fro m w h ic h to cra ft a c o h e r e n t stru ctu re o f a d m in istr a tiv e la w , c o m p a r a tiv e in stitu tio n a l c o m p e te n c e m a y in d ee d be terrib ly p la stic . B u t I th in k — an d , in h is h ea rt o f h earts, I th in k E d le y th in k s — th a t it is th e o n ly m a te r ia l w e h ave. W e ’ll ju st h a v e to m a k e th e b est o f it.

34.

E.g., H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making A pplication of Law (tent. ed. 1958); Jaffe, supra note 6. 35. See, e.g., Diver, Policym aking Paradigm s in A dm inistrative Law, 95 Harv . L. Rev. 393 (1981); Diver, Statutory Interpretation in the A dm inistrative State, 133 U. Pa . L. Rev . 549 and

(1985).

[3] JUDICIAL REVIEW OF QUESTIONS OF LAW AND POLICY Stephen Breyer*

rom the early 1930s to the present day, those studying the growth o f the administrative state have sounded two conflicting themes. The first is that of “the need for regulation.” Complex modern social, economic and technical problems require governmental intervention, particularly into the private marketplace. Intervention means regula­ tion by administrators acting under generally worded congressional delegations o f broad policymaking authority. The second theme is that o f “the need for checks and controls.” These same necessary administrators must be checked in the exercise of their broad powers lest their shortsightedness or overzealousness lead to unwise policies or unfair or oppressive behavior. Congressional action in the late 1960s and early 1970s reflected the first of these themes. Congress created many new agencies charged with problems of health, safety and environmental protection.*1*3 Perhaps in reaction to the sudden, large growth in federal regulatory activity, however, public debate during the past decade has focused on the second theme: How can government guarantee wiser or fairer regulatory policies? How can it regulate the regulators? One can find several general topical answers to these latter questions. One kind of answer focuses upon the substance of particular regula­ tory programs and advocates dramatic individual substantive changes such as economic deregulation of airlines,“ trucking,11or financial insti-

F

*Judge, United States Court of Appeals for the First Circuit. Earlier and different versions of this paper were presented at a United States/United Kingdom Conference on Comparative Administration and Law, May 11-13, 1984; and at a National Science Foundation Conf erence on Regulation, Sept. 12-14, 1985. The latter version will appear in Public Regulation: New Perspectives on Institutions and Policies (E.E. Bailey ed.) (MIT Press). lE.g., 42 U.S.C. §§ 4321-4370 (1969) (National Environmental Policy Act of 1969); 29 U.S.C. §§ 651-678 (1970) (Occupational Safety and Health Act). ’^Airline Deregulation Act o f 1978, Pub. L. 95-504 92 Stat. 1705. 3Motor Carrier Act o f 1980, Pub. L. No. 96-296 94 Stat. 793.

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unions*34*or increased reliance on taxes to control environmental pollu­ tion.3Another sort o f answer focuses more generally upon the govern­ ment’s institutional structure. It advocates changes in structure that would, for example, increase the supervision and control o f regulators by Congress,6 by the White House7 or by the courts.8 A comprehensive analysis o f current regulatory problems would require an examination o f both these approaches. It would require a review of many individual regulatory programs and also a detailed comparative account o f the abilities of Congress, the White House and the courts to effectively supervise the actions of administrative regulators.9 This article, while not comprehensive, is related to this needed broad general account. It examines a small portion of that large picture, namely court efforts to control agency action10 and the basic principles of law that govern judicial review of agency action. To be more specific, the article examines two important general legal doctrines that, in part, govern that review. The first doctrine concerns the appropriate attitude of a reviewing court towards an agency’s interpretations of law, such as the law embodied in the statute that grants the agency its legal powers. To what extent should a court make up its own mind, independently, about the meaning of the words of the statute? The second doctrine concerns a reviewing court’s attitude toward an agency’s regulatory policy. How willing should a court be to set aside such a policy as unreasonable, arbitrary or inadequately considered? The conclusions that emerge from the examination of current doc­ trines or principles are threefold. First, current doctrine is anomalous. It urges courts to defer to administrative interpretations of regulatory depository Institutions Deregulation and Monetary Control Act o f 1980, Pub. L. No. 96-221, 94 Stat. 132. 342 U.S.C. § 7420 (1977) (Clean Air Act Amendments o f 1977). 6T he legislative veto was one notable attempt to increase Congress’ supervisory control over administrative action. It gained in popularity until it was declared unconstitutional in INS v. Chadha, 462 U.S. 919 (1983). 7E .g ., Exec. Order 12,291,46 Fed. Reg. 13,193 (1981), reprinted in 5 U.S.C. § 601 app. 301-305 (1981), greatly expanded the supervisory role o f the Office o f Management and Budget over the federal bureaucracy. sE .g .,S . 1080, 98th Cong., 1st Sess. (1983) (the Bumpers Amendment) which proposed adding the word “independently” to the judicial review section o f the Administrative Procedure Act, 5 U.S.C. § 706, so that it would read: “[T]he reviewing court shall in d ep en d en tly decide all relevant questions o f law . . . ” (emphasis added). See also Motor Vehicle Manufacturers Ass’n o f the United States v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983) (discussed in Part II o f this article). 9See Breyer, R efo rm in g R e g u la tio n , 59 T ul. L. R ev. 4 (1984). ,0For examination o f another portion, see Breyer, The L egislative Veto A fte r Chadha, 72 G eo . L.J. 785 (1984) (discussing prospects for increased congressional supervision of agency action).

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statutes, while also urging them to review agency decisions o f regula­ tory policy strictly. Since courts have responded, like other gov­ ernmental institutions, to two basically conflicting pressures, the need for regulation and for checks on regulators, this anomaly may not be surprising. Yet, law that embodies so skewed a view of institutional competence is inherently unstable and likely to change. Second, the courts, as presently limited by rules requiring the presentation o f information through public adversary procedures, are not particularly well suited to determine the wisdom o f agency policy. Thus, if one wishes to use the courts as important instruments for controlling agency policy, one must consider whether, or how, they can obtain better information or a more global, comprehensive view' of an agen­ cy’s objectives and its work. Third, judges are encouraged to make up their own minds more, and to rely upon agency judgments less, when determining the lawfulness of agency policies. This recent approach to regulatory reform is embodied in Senator Dale Bumpers’ proposal to add the word “independently” to the Administrative Procedure Act so that its sentence concerning judicial review reads: “[T]he reviewing court shall independently decide all relevant questions of law .. . The discussion in this article suggests that this approach is not likely to work. I. QUESTIONS OF LAW A. Two Opposite Judicial Attitudes We first examine a court’s attitude when reviewing a claim that an agency’s action violates a particular provision in a statute, or that it lacks a necessary statutory authorization. How should it treat the agency’s decision about the relevant interpretation o f law? Should the court “defer” to the agency or should it give special weight to the agency’s legal views? The single most interesting observation about this question concerning judicial review of an agency determination o f law is that of Judge Friendly. He points out that there is no consistent “law” of “proper judicial attitude.” Rather, there “are two lines of Supreme Court decisions on this subject which are analytically in conflict.*12 Perhaps one should expect to find attitudinal inconsistency: relevant legal questions vary widely in both nature and importance. One agency, for example, may decide that a United States employer has "S. 1080, 98th Cong., 1st Sess. (1983) (emphasis added). ,2Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir. 1976) (affdsub nom). Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977); see also 5 K. D avis , A dministrative Law § 29.16 (2d ed. 1984). Similarly, Judge Edwards has declared that “the results at times seemed to be jabberwok.” Edwards, J udicial Review of Deregulation, i 1 N. Ky. L. R ev . 229, 240 (1984).

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placed an employee whose private rowboat sinks during a Sunday pleasure outing on a Korean lake in a “zone of special danger.”13The legal question, the meaning o f the quoted phrase, is highly specialized, fact specific, and unlikely to have broad legal or practical implications. Alternatively, a different agency may decide that cable television sys­ tems are not engaged in “broadcasting”; therefore the agency has the legal power to regulate them as “common carriers.” 14 The legal ques­ tion, the scope of the quoted words, is of great importance for televi­ sion viewers, for the communications industry, and for American political, social and cultural life. Why should one expect a legal system to provide one consistent method for deciding legal questions of such varying importance? Nonetheless, the cases seem inconsistent. One set of cases displays an attitude towards agency decisions of law that must be described as “deferential.” It is illustrated by NLRB v. Hearst Publications, /nr.,15 where the Supreme Court upheld a Labor Board decision that certain newspaper distributors were “employees” within the meaning of the National Labor Relations Act. In deciding a question o f law, the Court emphasized the need to give special weight to the agency’s decision. The agency’s “[e]veryday experience in the administration of the stat­ ute gives it familiarity” with the practical problems and necessities involved in regulating the area.16 The Court wrote: “Where the ques­ tion is one o f specific application of a broad statutory term in a pro­ ceeding in which the agency administering the statute must determine it initially, the reviewing court’s function is limited.” The Court should only determine whether the agency’s decision has ‘“warrant in the record’ and a reasonable basis in law.”17* A different set o f cases exemplifies a judicial attitude that must be described as “independent.” It is illustrated by the superficially similar case o f Packard Motor Car Co. v. N L R B ,1* where the Supreme Court reviewed a Labor Board determination that shop foremen were “em­ ployees” as that term is used in the National Labor Relations Act. The Court upheld the determination, but it did not simply look to see whether the Board’s decision had “a reasonable basis in law.” To the contrary, the majority and the dissenters each made their own legal '’O’Keeffe v. Smith, Hinchman and Grylls Assocs., 380 U.S. 359 (1965) (per curiam). "FCC v. Midwest Video Corp. (Midwest II), 440 U.S. 689 (1979). I5322 U.S. I l l (1944). wId. at 130 (citing Gray v. Powell, 314 U.S. 402, 411 (1941)). "Id. at 131. '»330 U.S. 485 (1947).

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analysis; neither suggested the agency’s decision should receive any special weight or deference; and neither referred either to Hearst or to any o f the cases on which Hearst relied.19 Each of these cases has spawned spiritual descendants. Many more recent Supreme Court cases, discussing the proper judicial attitude towards agency decisions of law, echo Hearst. In 1979, the Court wrote that, if the Labor Board’s “construction of the statute is reasonably defensible, it should not be rejected merely because the courts might prefer another view of the statute.”20 In 1980 the Court said it would uphold the Federal Reserve Board’s interpretation o f its governing statute as long as it was not “demonstrably irrational.”21 In 1981, it said, with respect to a legal interpretation by the Federal Election Commis­ sion: “The task for the Court of Appeals was not to interpret the statute as it thought best but rather the narrower inquiry into whether the Commission’s construction was ‘sufficiently reasonable’ to be accepted by a reviewing court.”22 Packard, however, also has children o f its own. In 1983, for example, the Supreme Court cited the deference cases when it reviewed a legal interpretation of the Bureau of Alcohol, Tobacco and Firearms. The Supreme Court said that courts, when reviewing agency interpreta­ tions of law, must not “slip into . . .judicial inertia” or “rubber stamp” agency decisions.23 It has stated unequivocally in many cases that the judiciary is responsible for the final determination o f the meaning o f statutes.24 And, in numerous cases the Supreme Court, without citing the deference cases, has simply adopted what Judge Friendly, and other students of the subject, consider to be a more independent attitude.25 Gray v. Powell, 314 U.S. 402 (1941). 20Ford Motor Co. v. NLRB. 441 U.S. 488, 497 (1979). 2lFord Motor Credit Co. v. Milhollin, 444 U.S. 555, 565 (1980). 22FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 39 (1981). '"Bureau o f Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97 (1983) (quoting American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318 (1965) and NLRB v. Brown, 380 U.S. 278, 291-92 (1965)). "FTC v. Colgate-Palmolive Co., 380 U.S. 374, 385 (1965) (“while informed judicial determination is dependent upon enlightenment gained from administrative experi­ ence,” words setting forth “a legal standard . . . must get their final meaning fromjudicial construction”). ¿JE.g., Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977); American Ship Bldg. Co. v. NLRB, 380 U.S. 300, 318 (1965); NLRB v. Brown, 380 U.S. 278, 291-92 (1965); NLRB v. Insurance Agents' Int’l Union, 361 U.S. 477, 499-500 (1960); NLRB v. Highland Park Mfg. Co., 341 U.S. 322 (1951); Davies Warehouse Co. v. Bowles, 321 U.S. 144 (1944); see 5 K. D avis , supra note 12, § 29.16.

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B. Reconciling the Conflict One might try to reconcile this apparently conflicting case law by asking why a court should ever “defer” to an agency’s interpretation of the law? After all ju d g e s are charged by statute and Constitution with deciding legal questions. Why should they ever pay particular attention to the agency’s legal views? One can think o f two possible jurisprudential answers to these ques­ tions. First, one might believe that judges should pay special attention to the agency because the agency knows more about the particular area o f the law than does the court. This answer, in part, treats agency lawyers like expert tax lawyers or real estate lawyers to whom judges sometimes listen with particular attention when they must decide a difficult and complex case. In the context of administrative law, this jurisprudential answer may rest upon a particularly important, highly relevant legal fact, namely, the likely intent of the Congress that enacted the statute. The agency that enforces the statute may have had a hand in drafting its provisions. It may possess an internal history in the form o f documents or “handed-down oral tradition” that casts light on the meaning o f a difficult phrase or provision. Regardless, its staff, in close contact with relevant legislators and staffs, likely understands current congressional views, which, in turn, may, through institutional history, reflect prior understandings. At a minimum, the agency staff understands the sorts of interpretations needed to “make the statute work.” It is virtually always proper for a court to assume Congress wanted the statute to work and, at least, did not intend a set of inter­ pretations that would preclude its effective administration. This “better understanding of congressional will” is reflected in many court statements urging deference. The District o f Columbia Circuit, for example, recently wrote: Courts regard with particular respect the contemporaneous construction of a statute by those initially charged with its enforcement. . . . [W]here the agency was involved in developing the provisions, this principle applies with even greater force.26

Similarly, courts have said they find an agency’s views more persuasive when they reflect a longstanding, consistent interpretation of the statute.27 Congress’ reenactment o f the statute, in the face o f an agency interpretation, is also some evidence that the agency’s interpretation is*21

'“^Middle South Energy, Inc. v. FERC, 747 F.2d 763, 769 (D.C. Cir. 1984) (citingcases);

see also Norwegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 315 (1933). 21See, e.g., Mass. Trustees v. United States, 377 U.S. 235, 241 (1964).

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correct;28 at least it suggests that the agency’s interpretation does not radically violate current congressional expectations—a fact that, in turn, offers some evidence about the understandings of relevant agen­ cy “client groups,” providing some (often weak) evidence about the original congressional understanding. There may also be some sense that because o f “settled expectations,” a statute’s words, legally speak­ ing, come to mean what affected parties reasonably understand them to mean over a long period o f time, irrespective of a legislature’s original understandings.29Where all these considerations are absent, for exam­ ple, where the agency adopts a radically new statutory interpretation, courts have sometimes said that the agency is not entitled to “deference.”30 O f course, the strength and the relevance of these considerations varies from case to case. But they all reflect one type of answer to the question “why defer?,” namely, “because the agency has a better understand­ ing o f relevant la w ”

A very different sort o f answer to the question “why defer?” is, “Congress told the courts to defer in respect to this particular legal question; Congress delegated to the agency the power to decide the relevant question o f law.” Indeed, Congress may have explicitly dele­ gated rulemaking authority to an agency; the resulting agency rules, in a sense, are “laws”; and, to make “legislative rules” is to engage in a “law declaring” function.31 But, Congress is rarely so explicit about delegat­ ing the legal power to interpret a statute. The Supreme Court nonetheless suggested as early as 1946 that Congress might delegate an interpretive, as well as a rulemaking, power to an administrative agency. In Social Security Board v. Nierotko ,32*the Court held that the Social Security Board did not have the power to exclude a worker’s back pay from his “wages” for the purpose of calculating benefits. The Court wrote that: [When an Administration] interprets a statute so as to make it apply to particular circumstances[,] [it] acts as a delegate to the legislative power. Congress might have declared that “back pay” awards under the Labor Act should or should not be treated as wages. Congress might have delegated to

28NLRB v. Bell Aerospace Co., 416 U.S. 267, 275 (1974). 29See American Methyl Corp. v. EPA, 749 F.2d 826, 839 n.85 (D.C. Cir. 1984); Sunstein, Deregulation and the Hard-Look Doctrine, 1983 S up . Ct . R ev. 177, 204 (1983) (discussing expectations and reliance interests that build up around regulatory scheme). Sunstein, supra note 29, at 204. ;n5 K. D avis , supra note 12, § 28.6, at 279; Schweiker v. Gray Panthers, 453 U.S. 34, 43-44 (1981). i2327 U.S. 358 (1946).

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the Social Security Board to determine what compensation paid by em­ ployers to employees should be treated as wages. Except as such interpretive power may be included in the agencies' administrative functions, Congress did neither.™

The italicized language suggests that through implication, courts may sometimes find that they should pay special attention to agency views on particular legal questions. For the most part courts have used “legislative intent to delegate the law-interpreting function” as a kind of legal fiction. They have looked to practical features o f the particular circumstance to decide whether it “makes sense,” in terms o f the need for fair and efficient administra­ tion o f that statute in light o f its substantive purpose, to imply a congressional intent that courts defer to the agency’s interpretation. It is nothing new in the law for a court to imagine what a hypothetically “reasonable” legislator would have wanted (given the statute’s objec­ tive) as an interpretive method of understanding a statutory term surrounded by silence.;M Nor is it new to answer this question by looking to practical facts surrounding the administration of a statutory scheme.35 And, there is no reason why one could not apply these general principles, not simply to the question of what a statute’s words mean, but also to the question o f the extent to which Congress in­ tended that courts should defer to the agency’s view o f the proper interpretation. Thus, courts will defer more when the agency has special expertise that it can bring to bear on the legal question.3rt Is the particular question one that the agency or the court is more likely to answer correctly? Does the question, for example, concern common law or constitutional law, or does it concern matters of agency administra­ tion?*37 A court may also ask whether the legal question is an important one. Congress is more likely to have focused upon, and answered, major questions, while leaving interstitial matters to answer themselves in the course o f the statute’s daily administration.38 A court may also look to see whether the language is “inherently imprecise,” i.e., ™ld. at 369 (emphasis added). Trailways, Inc. v. ICC, 727 F.2d 1284, 1288-89 (D.C. Cir. 1984). 3:’Sec id. at 1289-91. ^Montana v. Clark, 749 F.2d 740, 746 (D.C. Cir. 1985); Mayburg v. Secretary of Health & Human Servs., 740 F.2d 100, 105-06 (1st Cir. 1984); Constance v. Secretary o f Health & Human Servs., 672 F.2d 990, 995-96 (1st Cir. 1982). 37Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 914-15 (3rd Cir. 1981) Montana, 749 F.2d at 744-45. 38Montana, 749 F.2d at 746; Mayburg, 740 F.2d at 106; Constance, 672 F.2d at 995-96; International Bhd. o f Teamsters v. Daniel, 439 U.S. 551, 566 n.20 (1979).

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whether the words o f the statute are phrased so broadly as to invite agency interpretation.39 It might also consider the extent to which the answer to the legal question will clarify, illuminate or stabilize a broad area o f the law.40 Finally, a court might ask itself whether the agency can be trusted to give a properly balanced answer. Courts sometimes fear that certain agencies suffer from “tunnel vision” and as a result might seek to expand their power beyond the authority that Congress gave them.41 O f course, reliance on any or all o f these factors as a method o f determining a “hypothetical” congressional intent on the “deference” question can quickly be overborne by any tangible evi­ dence o f congressional intent, for example, legislative history, suggest­ ing that Congress did resolve, or wanted a court to resolve, the statu­ tory question at issue.42 These factors help explain many cases. Hearst (the “news distributor/ em ployee” case), for example, presented a minor, interstitial question o f law, which was intimately bound up with the statute’s daily adminis­ tration and was likely to be better understood by a technically expert agency than by a legally expert court. Packard (the “foreman/employee” case), on the other hand, presented a legal question o f great importance in the field o f labor relations: “Does the NLRA cover shop foremen?” This question raised political, as well as policy, concerns; it seems unlikely that Congress wished to leave so important and delicate a legal question to the Board to decide. Using these factors as a means of discerning a hypothetical congres­ sional intent about “deference” has institutional virtues. It allows courts to allocate the law-interpreting function between court and agency in a way likely to work best within any particular statutory scheme. Insofar as Congress is viewed as delegating the power to the agency, it gives the agency flexibility to adapt or to modify past policies. By contrast, a theory of deference based upon the agency knowing original congressional intent “better” than the court, tends to insulate administrative policies adopted early in a statute’s history from later change.43O f course, the “delegation” way of looking at deference tends to blur any clear distinction between “legislative” and “interpretive”

39Montana, 749 F.2d at 746. i0Alayburg, 740 F.2d at 106. uHi-Craft, 660 F.2d at 916 (“government agencies have a tendency to swell, not shrink, and are likely to have an expansive view o f their mission" and “therefore, an agency ruling that broadens its own jurisdiction is examined carefully"). V1Montana, 749 F.2d at 746. 43See S. B reyer &R. Stewart , A dministrative Law and Regulatory Policy 287 (2d ed. 1985); E dwards , supra note 12, at 257-58.

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rules. It suggests that Congressional intent to make agency decisions of law binding is really a question o f how much deference Congress in­ tended courts to pay to the agency's decisions, a matter o f degree, not kind, and a matter to be considered by examining a particular statute in light o f the various practical factors mentioned. In sum, one can reconcile apparent conflict in case law descriptions of a proper judicial attitude towards agency decisions of law. The reconciliation process consists o f asking the question, “Why should courts ever defer?" The reconciliation consists of two answers to this question, answers that are not mutually exclusive, and which may apply in different cases. One answer rests upon an agency’s better knowledge o f congressional intent. The other rests upon Congress’ intent that courts give an agency legal interpretations special weight, an intent that (where Congress is silent) courts may impute on the basis of various “practical” circumstances. C. The Problem o f the Chevron Case A recent Supreme Court case, Chevron, U.S.A. v. Natural Resources Defense Council,44 is particularly important because it suggests a some­ what different test for determining the proper judicial attitude, the degree of deference, towards an agency’s legal decisions. The case concerned the Environmental Protection Agency’s interpretation of the words “stationary source” in the EPA’s governing statute. EPA interpreted these words to refer (in part) to an entire plant. That interpretation allowed EPA to make rules45 that treated an entire plant as a single “source,” thereby allowing its owner to emit more pollutant than ordinarily permissible from one stack, provided it emitted less pollutant from another. The Court (reversing the District o f Columbia Court of Appeals) upheld the EPA’s interpretation. The Court in Chevron described the relation of court to agency when interpreting a statute as follows: First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court deter­ mines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction of the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question 11104 S.Ct. 2778 (1984). ,5EPA possessed legislative rulemaking power delegated to it in a different part o f the statute, 42 U.S.C. § 7601(a)(1) (1982).

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for the court is whether the agency’s answer is based on a permissible construction of the statute.46

The Court added: Sometimes the legislative delegation to an agency on a particular question is implicit rather than explicit. In such a case, a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency.4748

This language may be read as embodying the complex approach set out above; it speaks of “implicit” delegation of interpretative power, and the word “permissible” is general enough to embody the range of relevant factors. Yet, the language may also be read as embodying a considerably simpler approach, namely, first decide whether the stat­ ute is “silent or ambiguous with respect to the specific issue” and, if so, accept the agency’s interpretation if (in light of statutory purposes) it is “reasonable.” Recent cases in the District o f Columbia Circuit Court o f Appeals indicate that the lower courts may have accepted this second inter­ pretation of Chevron.™ As so seen, Chevron offers a simpler view of proper judicial attitude, but a view that conflicts and competes with that offered above. Despite its attractive simplicity, however, this inter­ pretation seems unlikely in the long run, to replace the complex approach described above for several reasons. First, there are too many different types of circumstances, including different statutes, different kinds of application, different substantive regulatory or administrative problems, and different legal postures in which cases arrive, to allow “proper”judicial attitudes about questions of law to be reduced to any single simple verbal formula. Legal ques­ tions dealing with agencies come in an almost infinite variety o f sizes, shapes and hues. To read Chevron as laying down a blanket rule, applicable to all agency interpretations o f law, such as “always defer to the agency when the statute is silent,” would be seriously overbroad, counterproductive and sometimes senseless. To understand why this is so, one must understand the degree of complexity o f the details in a typical administrative law case, a difficult task, for the details are often voluminous and the relevant administra­ tive law issues often seem but the tiny tip of a vast legal iceberg. Yet, a 46104 S.Ct. at 2781-82. 47/rf. at 2782. 48Railway Labor Executives’ Ass’n v. United States R.R. Retirement Bd., 749 F.2d 856, 860 (D.C. Cir. 1984); Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133, 141 (D.C. Cir. 1984).

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recent First Circuit case, Avery v. Secretary of Health and Human Services*9 (a simpler case than most), may help give the reader an impression of the legal and practical facts that underlie this statement. In Avery, a class o f Massachusetts residents who had received federal social security benefits for disabled people sued the Secretary of HHS claiming that HHS was using an improper standard in deciding when, or whether, to terminate the benefits o f persons already receiving them. They argued that the Secretary would sometimes, when decid­ ing whether to continue or to terminate benefits, reopen the question o f whether the recipient had been disabled in the first place. They said the Secretary should not reexamine the merits of what might initially have been a close question; rather, she should continue payment in the absence of a “medical improvement,” i.e., a medical change for the better. The Massachusetts suit was one of several class actions brought throughout the nation. While these suits were pending, Congress passed a special law that dealt with the underlying problem.50 The law specifically required the Secretary to use a “medical improvement” test in the future. And, it also said that the judges dealing with pending class actions should remand those actions to the Secretary so that the members of the class could have their terminations reconsidered under the new “medical improvement” standard. The reconsideration o f these past terminations raised practical administrative problems. The members of the class might not actually know they were members. The Massachusetts class, for example, con­ sisted of: all SSI and SSDI beneficiaries residing in Massachusetts who have been or are receiving disability benefits and who, having presented claims of con­ tinuing disability, have been or will be disqualified from receiving benefits as a result of the Secretary’s failure to adhere to a medical improvement standard when evaluating claims of continuing disability.51

To decide whether a person belongs to the class would require notify­ ing all persons whose disability benefits had been terminated and finding out why they had been terminated. The cases of those termi­ nated for the relevant reason would be sent to the Secretary for reconsideration. All this background is necessary to understand the legal issue in the First Circuit case and to understand how minor that issue was. The ,9762 F.2d 158 (1st Cir. 1985). 5"Social Security Disability Benefits Reform Act o f 1984, Pub. L. No. 98-460, 98 Stat. 1794 (1984). 5,Avery v. Heckler, 584 F. Supp. 312, 322 (D. Mass. 1984).

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district judge had reviewed the notices that the Secretary proposed to send to those persons whose disability payments had been terminated. He had decided that they were written in “gobbledygook,” and had ordered the Secretary to send a notice written by plaintiffs’ counsel, a notice that he thought was clearer. He also had laid down certain procedural rules that would provide a more expeditious procedure for determining class membership. The Secretary appealed these procedural determinations. She pointed to a sentence in the new Act that said, “The Secretary shall notify [an individual class member] that he may request a review o f ” his termination. She said this sentence impliedly meant that the district court lacked the power to impose any procedural rules or to order the sending of any particular sort o f notice. It was up to the “Secretary” to decide the form and content o f the notice, and the procedures for determining class membership. In considering the Secretary’s claim, the First Circuit did not refer to Chevron, nor did it discuss the “deference due” to an agency’s inter­ pretation of its own statute. It upheld the district court’s decisions, for roughly the following reasons: First, it makes sense to allow district courts in pending class actions to enter procedural orders that expedite resolution of the underlying controversy. The procedural order contained a provision designed to expedite the segregation of the relevant subgroup (those that might have been affected by a “medical improvements” standard) from the main group notified (those whose benefits had been terminated). Since class membership carried with it the right to interim benefits, this segregation was important and likely to be controversial. The district court’s order provided that HHS would make an initial decision about class membership within a day of receiving a claimant’s request; plain­ tiffs’ counsel would be notified, and the U.S. Attorney would be asked to help resolve disagreements. The district court review could then be obtained. The alternative was to allow HHS to decide the question of class membership on its own timetable, and then to face a less orderly set of court appeals. The court’s procedure offered an administratively practical way, consistent with the court’s broad and flexible powers under the Federal Rules of Civil Procedure,52to carry out the new law’s remand and redetermination requirements. Secondly, neither the court’s notice requirements nor the other related procedural requirements would interfere significantly with the b2See Fed. R. Civ. P. 23(d) (“[T]he court may make appropriate orders: 1) determining the course o f proceedings or prescribing measures to prevent undue repetition or complication . . . ; 2) requiring, for the protection of the members o f the class or otherwise

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Secretary’s ability to administer the Act. At most, the Secretary would have to reprogram her letterwriting computers so that they would send Massachusetts residents a letter somewhat different from the letter sent elsewhere. Telling a computer to write a different letter is an easy task. Furthermore, the district court was correct in believing that the letter written by plaintiffs’ counsel was written in better, clearer, simpler English than the letter prepared by HHS. It is more likely that the men and women for whose benefit the notice was intended would understand plaintiff’s counsel’s notice explaining their rights under the new stat­ ute. The three reasons that the First Circuit found convincing have nothing at all to do with Chevron. Indeed, the court did not refer to Chevron, or to the “deference” owed a reasonable administrative inter­ pretation o f a statute. Why not? After all, even though the Secretary’s interpretation o f the relevant sentence in the statute (reading it as meaning only the Secretary can determine the content of a notice and the procedural rules for determining class membership) seems un­ natural, the statute is silent on the particular point. One can imagine a list of reasons for not deferring to the Secretary’s interpretation: (1) Congressional silence here meant what congression­ al silence usually means: not that Congress intended the agency to decide a question of law, but that Congress never thought about the question. (Why should it have thought explicitly about such a narrow and technical matter?) (2) To defer to the Secretary here means addi­ tional pointless delay; it interferes with a court’s efforts to create sensible procedures that will help expeditiously resolve a controversy; so why should the court defer? (3) There is nothing the Secretary knows about the legal question that the court doesn’t know; if there is some­ thing, she can tell the court. (4) Far from delegating broad new inter­ pretive power to the Secretary, the new Act was instead designed to curb the Secretary’s power and alter her past SSI-elegibility policies. (5) The Act expressed special concern about resolving pending class ac­ tions in the courts, and spoke not o f judicial “dismissals” of pending suits, but o f judicial “remands,” technical jurisdictional language sug­ gesting the permissibility of continuing court involvement to assure the speedy and just resolution of the claims of class members.33 (6) There for the fair conduct o f the action, that notice be given in such manner as the court may direct to some or all o f the members o f any step in the action . . . ; 5) dealing with similar procedural matters.”). ysSee, e.g., Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981) (remanding court is “vested with equity powers” and “may adjust its relief to the exigencies o f the case in accordance with . . . equitable principles”).

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was no special need here for nationally uniform “notice” and “proce­ dure” rules promulgated by the Secretary. Instead, the new Act was to apply to a wide variety of pending class actions, in widely different procedural postures. Appropriate management of these cases to achieve the objectives of Congress would be likely to require different notices and orders in different cases. And, individual district judges accustomed to dealing with complicated class actions were likely to be in the best position to determine exactly which notices and procedures would make the most sense in the particular class actions before them. These final factors suggest that, if Congress had been asked about “deference,” it probably would have said that the “administrator” to whom courts o f appeals should generally defer on “notice” and “proce­ dure” questions is the district judge, not the Secretary. Further, to have deferred to the Secretary would have conflicted with the court’s more general obligation to see that the human conflicts and controversies before them are handled expeditiously and fairly. The Avery case had already been in progress for several years; the appeal on these trivial issues had added additional months. T o have deferred to the agency’s views of the case would have delayed resolu­ tion even further. It would have rejected an appreciation of the human element o f the controversy in favor of a mechanical application of a “deference” rule to circumstances where there was no good reason to apply it. These factors suggest that “deference” was inappropriate. More importantly, this long discussion of one case is necessary to show how unimportant the deference issue can be in context. The discussion shows that the Chevron or deference issue cannot reasonably apply to all questions o f statutory interpretation, particularly not to trivial ques­ tions embedded deep within other, more important issues in a case. By example, it is meant to suggest that the way in which questions of statutory interpretation may arise are too many and too complex to rely upon a single simple rule to provide an answer. A second reason why a strict interpretation of Chevron is undesirable is that it will often add unnecessary lapses of delay, complexity and procedure to a case. Consider, for example, the recent case o f Railway Labor Executives Association v. United States Railroad Retirement B o a rd s

The District of Columbia Court of Appeals was asked to interpret a statutory provision that exempted certain employers from the retire­ ment and unemployment sections of the Railway Labor Act in respect to certain employees. The provision reads:51

51749 F.2d 856 (D.C. Cir. 1984).

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An individual not a citizen or resident of the United States shall not be deemed to be in the service of an employer when rendering service outside the United States to an employer who is required under the laws applicable in the place where the service is rendered to employ therein, in whole or in part, citizens or residents thereof.55

The question was whether this provision applied to American railroads operating in Canada, whose laws allowed an immigration officer to refuse employment authorization if “in his opinion” employment of, say, an American, would “adversely affect employment opportunities” for Canadians. Did the immigration law mean the American railroad “is required under the laws . . . to employ [in Canada] in whole or in parr citizens [of Canada]?” This question, the court believed, might turn upon whether the phrase “is required under the laws” means “is expressly required” or “is in effect required.” The court believed that the statute was silent on the particular question, but that under Chevron it should see if the agency had a reasonable interpretation of the words. It found, however, that the agency had no coherent account of what the words meant; it had not considered the question in sufficient depth. The court then remanded the case to the district court, in part to determine the effects of the Canadian law, and in part to give the agency a chance to develop a “reasonable” interpretation of the statute. One can understand the need to develop a record about the effect of Canadian law, at least if the American statute is interpreted in a way that makes the question of effect determinative. But, it is more difficult to see why the court should remand to allow the agency to develop a view about the meaning of the statutory term. The opinion suggests that the court believed the “in effect” interpretation was correct. It certainly seems correct on the basis of the court’s description o f the case. What, then, does the court expect the agency to learn about the statute that the court does not already know? Why is the agency’s general counsel any more likely to come up with a “correct” interpreta­ tion than the court? All this is to suggest that the remand (for this purpose) is a waste o f time. And, given the extra months or years that a remand may involve, the problem of further delay is a serious one. The court’s opinion also makes it clear that its remand order simply reflects a good faith effort to comply with its strict interpretation of Chevron. If a “reasonable” interpretation of law by an agency is due “respect” or “deference,” must the agency not have an opportunity to make its interpretation? Must it not do so carefully after considering different points of view? Must not a court then, remand rather than 5545 U.S.C. §§ 231(d)(3), 3 5 l(e)(1946).

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decide the question itself if the agency fails, procedurally or substan­ tively, to act “reasonably” in making an interpretation? One can imag­ ine a host o f new judge-made laws developing around the question: “What must an agency do to guarantee that its interpretation is ‘reasonable?’”56 A simpler course o f judicial action, (and one that avoids the proce­ dural thicketjust mentioned) would be based upon a less literal reading of Chevron. The congressional “instruction” hypothetically implied from silence (and possibly other features of the situation) might be read, not as (1) “We delegate to the agency the power to create the law,” but rather as (2) “Court, Pay particular attention to a reasonable agency interpretation o f the law.” This second instruction implies that, if the agency has not offered a reasonable interpretation o f the statute in this case; if it has not considered the matter thoroughly; if, in Skidmore's words, the agency’s brief lacks “the power to persuade”; then the court should simply decide the question on its own. This second view makes practical sense from the perspective of judicial administration. A third reason why neither a strict view of Chevron, nor any other strictly defined verbal review formula requiring deference to an agen­ cy’s interpretation o f law can prove successful in the long run, is that such a formula asks judges to develop a cast o f mind that often is psychologically difficult to maintain. It is difficult, after having ex­ amined a legal question in depth with the object of deciding it correctly, to believe both that the agency’s interpretation is legally wrong, and that its interpretation is reasonable. More often one concludes that there is a “better” view of the statute for example, and that the “better” view is “correct,” and the alternative view is “erroneous.” There is not much room in this kind of thinking for the notion o f “both this view and its contrary are reasonable,” a notion with which one is more “at hom e” when, for example, juries apply standards to facts or agencies promulgate rules under a general delegation of authority.57 Thus, one can find many cases in which the opinion suggests the court believed the agency’s legal interpretation was correct and added citations to “deference” cases to bolster the argument.58 One can also find cases in which the court believed the agency’s interpretation was wrong and36

36See also Rettig v. Pension Benefit Guar. Corp., 744 F.2d 133 (D.C. Cir. 1984). blSee Pattern Makers’ League v. NLRB, 53 U.S.L.W. 4928,4934 (White.J., concurring) (U.S. June 27, 1985). ™See} e.g., Atlanta Gas Light Co. v. FERC, 756 F.2d 191, 196-97 (D.C. Cir. 1985); Defense Logistics Agency v. FLRA, 754 F.2d 1003, 1013—14 (D.C. Cir. 1985); South Dakota v. CAB, 740 F.2d 619, 621 (8th Cir. 1984).

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overturned the agency, often citing non-deference cases.59 But, it is more difficult to find cases where the opinion suggests the court believed the agency was wrong in its interpretation of a statute and nonetheless upheld the agency on “deference” principles. A further relevant psychological fact (or institutional pressure) con­ sists o f a need felt by judges to “make sense” of the administrative law case before their court. Such cases have typically been pending for a long time; they are complex; they have enormous records; and they require a detailed understanding o f facts and policy. Then, finally, after days or weeks spent trying to master the case, the judge may feel that the legal issues, in the context of the entire regulatory proceeding or litigation, are trivial. One can just begin to appreciate the problem by reviewing Avery. One might also begin to understand the pressure to dispose o f the case fairly, with proper respect for the law, but not to allow the litigation to drag on endlessly because o f controversies over trivial points. There is no particular reason to believe that automatically accepting the agency’s interpretation of a statute would simplify, or make easier, the judge’s task. Carrying out the ordinary judicial appellate task involves looking to both facts and existing law; looking to both equity in the particular case and the need for uniform, effective and fair rules applicable to similar cases; and looking to the development of a fair rule o f decision for the individual case that does not tangle the web of existing interpretations, including interpretations of rules, standards, statutory meanings and interpretive practices. Added to this set of factors are the need for reasonably expeditious decisions so that agen­ cies can act, the need to resolve individual challenges fairly, and the vast range o f different litigation contexts in which questions of statu­ tory interpretation can arise. The way in which an attitude toward review of agency interpretation of law relates to this complex task varies, depending upon the circumstances. Insofar as a single, simple approach to review o f agency interpretation of law, such as “defer to the agency,” interferes with the apparent accomplishment of this task in a particular case, the judge feels at least psychological pressure to disregard it. At a minimum there is little reason to think that a single simple approach will help to bring about sensible, proper court-agency working relationships.00 These factors will tend to force a less univocal, less far-reaching interpretation o f Chevron and the other “show deference on questions b9See, e.g., Bureau o f Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97-98 (1983). wSee Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

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of law” cases. Inevitably, one suspects, we will find the courts actually following more varied approaches, sometimes deferring to agency interpretations, sometimes not, depending upon the statute, the ques­ tion, the context, and what “makes sense” in the particular litigation, in light o f the basic statute and its purposes. No particular, or single simple judicial formula can capture or take into account the varying responses, called for by different circumstances, and the need to pro­ mote a “proper,” harmonious, effective or workable agency-court rela­ tionship. One might reformulate the two general points embodied in this brief discussion as follows. First, the main criticism that one might make of the Supreme Court’s case law describing appropriate judicial attitudes toward traditional agency interpretations o f the law is that it overstates the degree o f deference due the agency. If taken literally, the Court’s language suggests a greater abdication of judicial responsibility to interpret the law than seems wise, from either a jurisprudential or an administrative perspective. Second, the problem case law language poses is not serious, for one can work out a unified set o f principles roughly consistent with existing case law that allow a court to formulate a “proper” judicial attitude in individual cases. And, these principles seem reasonably satisfactory from both a jurisprudential and adminis­ trative point o f view. Finally, one might ask what this discussion implies about the need for Bumpers-type reform, the need to enact new legislation instructing courts to decide all questions of law “independently.” In light o f the discussion one might have either o f two reactions. First, one might believe that the legislation will satisfy a need to reform the law radically, i.e., to return to a period before Grey v. Powell, Hearst and Skidmore, when courts gave no special weight to agency views on a question of law. One might argue for such a return on the ground that any citizen affected by agency action should be entitled to a court’s independent determination that the law authorizes the agency’s conduct. Alternatively, one might view the amendment simply as an effort to tone down recent judicial rhetoric. T o state that an agency’s interpreta­ tion o f its governing statute will control unless “demonstrably irra­ tional”61 or as long as it is “reasonably defensible”62 sounds like judicial overkill. Chevron, too, might be limited to its factual and statutory context, where it is well suited; for, given the difficulties associated with environmental regulation, and the problem of devising workable, efb,Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 565 (1980). fi2Ford Motor Co. v. NLRB, 441 U.S. 488, 497 (1979).

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fective regulation, an inference that Congress intended the courts to listen carefully to EPA’s broad interpretation of the statute seems reasonable. Under this view, the Bumpers Amendment will not have much substantive effect, at least in the (more strictly defined) “question o f law” areas so far discussed. If one accepts the argument that con­ gressional intent to delegate power to decide questions of law can be a matter of degree, and if one adds that the “degree of respect” courts should show to agencies on these matters can and should vary (depend­ ing upon practical factors of the sort outlined), there is little need for the Bumpers proposal. The pressures discussed in section IIC of this paper will tend to build a jurisprudence of “degree and difference” into Chevrons word “permissible.” The first of these views is neither desirable nor practical. Why should courts ignore agency views on questions of law, especially when they involve minor, technical matters occurring within a complex statutory scheme, such as whether to apply an “earned income disregard” to non-needy caretaker parents under the Social Security Act?63 If Con­ gress instructs the courts to pay particular attention to the agency’s views, the courts should obey. And, this fact is sufficient to destroy the plausibility of totally independent judicial review. The second view is more acceptable. It sharply implies, however, that there is little for the Bumpers Amendment to accomplish in the “review of law” area as it has been strictly defined in this portion of the article. II. REVIEW OF AGENCY POLICY DECISIONS We turn now to the question of when courts will hold an agency policy decision unlawful because it is “unreasonable.” The question is difficult to answer, in part, because there is no set legal doctrine called “review of policy questions”; consequently, the case law does not purport to authoritatively govern judicial attitude in conducting a policy review. Nonetheless, one can focus upon two sets of legal decisions that often amount in practice to a review of the wisdom and the “reasonableness” o f agency policy.64 First, a court sometimes will directly substitute its judgm ent for the agency’s, on a matter of substantive policy, on the ground that the agency’s decision is “arbitrary, capricious, [or] an

H’Drysdale v. Spirito, 689 F.2d 252 (1st Cir. 1982). rt,O f course, sometimes the wisdom o f agency policy becomes relevant to the inter­ pretation o f the agency’s authorizing statute. If so, review ought to be governed by the principles discussed in Part I, supra.

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abuse o f discretion” under section 706(2)(A) o f the Administrative Procedure Act. Suppose, for example, the Labor Board decides that it will permit a union business agent to buy drinks for voters before a representation election. Can a reviewing court simply find this Board policy unreasonable in light o f the need for fair elections?65 When writing an administrative law case book in the late 1970s, the authors could find only a handful o f cases that faced so directly an agency policy decision and held it “arbitrary”; by the time the second edition was published in 1985, they found many more.66 Second, courts more and more frequently have applied a set of procedural principles that, in effect, require the agency to take a “hard look” at relevant policy considerations before reaching a substantive decision. These principles require that the agency examine all relevant evidence,67 to explain its decisions in detail,68to justify departures from past practices,69 and to consider all reasonable alternatives70 before reaching a final policy decision. In practice, these principles have far greater substantive impact than one might at first realize. A remand of an important agency rule (several years in the making) for more thorough consideration may well mean several years of additional proceedings, with mounting costs, and the threat o f further judicial review leading to abandonment or modification o f the initial project irrespective of the merits.71 Courts and agencies alike are aware that these “more thorough consideration” and “hard look” doctrines have substantive impact. To that extent, in examining the attitude with which the courts apply the doctrines, one is, in an important sense, examining the attitude with which they review the wisdom or reason­ ableness of agency substantive decisionmaking. The important attitudinal question is how closely the court will ex­ amine the agency’s policy decisions. To what extent will it defer to the agency’s expertise? How “hard” will the court “look” at the agency’s NLRB v. Labor Services, Inc., 721 F.2d 13 (1st Cir. 1983). B reyer & R. Stewart, su p ra note 43, at 336 n.107 (citing cases), w ith S. Stewart, A dministrative Law and Regulatory Policy 289 n.86 (1st ed. 1979) (citing cases). 67Scenic Hudson Preservation Conf. v. FPC {Scenic H udson /), 354 F.2d 608 (2d Cir. 1965). bHSee Sunstein, su p ra note 29, at 181. 60See id. at 182. C o m p a re S. B reyer & R.

7i]See id.

71One notable example is that of Consolidated Edison’s Storm King Project, the subject o f the Scenic H u d so n litigation. “Hard look” review resulted in the demise o f the project despite the Second Circuit’s ultimate go ahead. See Scenic Hudson Preservation Conf. v. FPC (S cenic H u d so n //), 453 F.2d 463 (2d Cir. 1971), cert, d e n ie d , 407 U.S. 926 (1972); S. B reyer and R. Stewart , su p ra note 43, at 349-50.

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“look”? With what state of mind is the reviewingjudge to approach the question of whether the agency has inadequately thought through policy considerations, or failed to take a “hard look” at evidence or alternatives, or simply adopted an unreasonable policy? The language in several important cases decided in the last two decades suggests an increasingly less hesitant judiciary, courts that are more ready to overturn agency policy decisions that they consider unreasonable. The D.C. Circuit speaks of the need for a “thorough, probing, in-depth review,”72and the need for a “substantial and search­ ing” inquiry.73 The Supreme Court has vacillated linguistically, some­ times speaking o f a “thorough, probing” review74 and sometimes speaking more traditionally about the need for courts to hesitate be­ fore substituting their judgment for that of the agency on matters of policy.75 A. State Farm: An Example o f “Strict Policy Review” The “airbags” case, Motor Vehicle Manufacturers Association of the United States v. State Farm M utual Automobile Insurance Co.,76 provides an example o f a fairly strict judicial attitude toward review of substantive agency policy. The issue in the case was whether the National Highway Traffic Safety Administration (NHTSA) acted reasonably in rescind­ ing Motor Vehicle Safety Standard 208, a standard requiring automak­ ers to install “passive restraints” in new cars. The regulation has a complex and convoluted history. In 1967, the Department of Trans­ portation (DOT) required manufacturers to install ordinary lap seat belts in all cars. In 1969, it proposed a “passive restraint” standard that would have allowed carmakers to install either ( 1) seat belts that would automatically surround the driver and passenger, or (2) airbags, which would inflate automatically in a crash and cushion the front seat occu­ pants. Unlike standard seat belts which passengers had to buckle, these “passive” devices required no affirmative conduct by the passenger. From 1973 to 1975, DOT required automakers to install either (1) these passive restraints or (2) lap and shoulder belts with an “interlock” preventing the driver from starting the car when the belts were un­ buckled. Most carmakers chose the interlock option; drivers became angry; and Congress then prohibited DOT from making the interlock 7v!Pacific Legal Found, v. DOT, 593 F.2d 1338, 1343 (D.C. Cir.), cert, denied, 444 U.S. 830 (1979). 73Specialty Equip. Mktg. Ass’n v. Ruckelshaus, 720 F.2d 124, 132 (D.C. Cir. 1983). 7,Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415 (1971). 75Baltimore Gas 8c Electric Co. v. NRDC, 462 U.S. 87, 103 (1983). 7tì463 U.S. 29 (1983).

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option a choice. After various further proposals, DOT finally required automakers to install either (1) airbags or (2a) detachable or (2b) spoolable (nondetachable) lap and shoulder belts that would automati­ cally surround the front seat occupants. Most automakers indicated they would take the “detachable belt” option. In 1981, the new administration simply rescinded Standard 208 on the ground that it was ineffective. Because carmakers then planned to install permanently detachable seat belts in 99 percent of all new cars, NHTSA thought that few lives would be saved. The court o f appeals found the agency’s action was unreasonable, but only after it applied an especially strict standard of review, a stan­ dard it felt justified in applying because of the legislative history of the agency’s authorizing statute. The Supreme Court held that the court of appeals should not have applied a special review standard. It wrote that the ordinary “arbitrary and capricious” standard should apply. The Court, however, found the agency’s action unreasonable even under this standard. An examination of the court’s opinion in light of NH TSA’s arguments suggests the court is holding that “ordinary” reasonableness review can itself be quite strict. The Court believed NHTSA’s rescission was unreasonable in three respects. First, it thought that NHTSA had failed to adequately con­ sider whether the passive detachable belts’ safety benefits would justify their cost. It accepted NHTSA’s view both that driver use o f existing lap belts was low and that current usage rates would have to more than double, from 11 percent to 24 percent, before the benefits of the more expensive nondetachable belts would outweigh their cost. The Court doubted, however, whether NHTSA was reasonable in rejecting stud­ ies showing that usage more than doubled when passive, detachable belts replaced lap belts in Volkswagen Rabbits and in Chevettes. The Court thought that NHTSA should have considered the generalizability o f these studies more carefully. In particular, it thought that NHTSA should study whether the “inertia” factor (the fact that pas­ sive, detachable belts require driver action to be decoupled, while existing lap belts require driver action to be coupled) would lead to higher usage. NHTSA had argued that it was not unreasonable in failing to gather this extra information before rescinding the standard. It argued that it had to act quickly: automakers needed to know soon whether or not they had to comply with the standard. NHTSA said that it had no evidence that the “inertia” factor would make a difference and that it could not find such evidence without conducting an elaborate experi­ ment o f the sort that a previous administration had rejected in 1977.

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NHTSA further argued that the Volkswagen and Chevette studies did not contradict, but, rather, supported, its position. Drivers of such small cars, it said, tend to use seat belts far more often than others; their passive detachable belts had “interlocks” which made the belts unusu­ ally difficult to detach; and the car owners in the studies had voluntarily paid more money for passive belts. NHTSA pointed out that, for these reasons, the passive belts usage figures could be interpreted in its favor. The studies showed that the car owners studied used passive belts 2.1 to 2.3 times more often than other drivers used ordinary lap belts in similar models; but the studies simultaneously showed that nearly one-third o f those who voluntarily had sought (and paid more for) passive belts with “interlocks” nonetheless disconnected them. NHTSA presumably thought that a significantly higher percentage of those who were forced to use detachable belts against their will would decouple the belts. To that extent, the studies supported rescission. Second, the Court thought that NHTSA had acted unreasonably in not considering whether to require nondetachable “spool-type” passive belts instead of rescinding Standard 208. NHTSA had argued, how­ ever, that nondetachable belts may make it more difficult to rescue unconscious drivers; that public fears of being trapped in an accident might lead car owners to remove nondetachable belts from their cars or lead Congress to prohibit requiring them; and that Congress’ re­ sponses to NH TSA’s earlier “interlock” proposals, forbidding NHTSA from requiring them even as an option, showed legislative hostility to “use-compelling” devices. The Court did not say why it thought these arguments unreasonable. But it remanded for a more “reasoned” analysis. Third, the Court unanimously77 felt NHTSA erred in failing to consider an “airbags-only” alternative to Standard 208. Here the Court was on strong ground, for NHTSA had said virtually nothing about this possible alternative when it rescinded the standard. Still, NHTSA could point to several factors militating in favor of calling its decision not to consider the “airbags only” alternative a reasonable one. For one thing, the specific decision NHTSA had to make was whether or not to rescind a rule that, in practice, was a “seatbelt-only” rule. Although carmakers in theory could have chosen to comply by installing airbags, few, if any, intended to do so. For another thing, NHTSA had histor­ ically considered airbags to be but one way of satisfying a passive restraint standard. When NHTSA first promulgated the standard, it

77The Court’s first two decisions were by a vote o f 5 to 4.

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stated that it in no way “‘favored’ or expected the introduction o f airbag systems to meet the [Standard 208] requirements.“78 It added that there were other “equally acceptable” ways to meet its passive restraint standard.79*Thus, it may have seen the “airbags-only” alterna­ tive as a new and different idea. Moreover, an “airbags-only” rule is a very costly way to save lives. The court o f appeals mentioned cost estimates of $200 to $330 per car. The yearly cost to the economy would have ranged from $2 billion to $5 billion (for the annual new fleet of 10 to 15 million cars) depending upon which figures one picked. Deciding whether all car buyers should pay these costs becomes difficult (even when doing so would save 9,000 lives per year) once one realizes that a buckled seatbelt achieves virtu­ ally the same result at a fraction of the price. Further, NH TSA’s authorizing statute mandates performance stan­ dards, not design standards. An “airbags-only” rule would have come close to the latter because it would have told manufacturers how to make their cars safer, not how safe their cars must be. Finally, full consideration o f an “airbags-only” rule would have taken time, and manufacturers needed to know quickly what they had to do. Unless NHTSA rescinded Standard 208 soon, they would have had to start preparing to install passive belts in all cars. N H TSA ’s answers to the court’s three objections did not, o f course, necessarily show that its action was “reasonable,” but, the Supreme Court’s opinion does not show them to be obviously fallacious eith er/0 It seems safe to conclude that, in finding NHTSA’s arguments insuf­ ficient, the Supreme Court applied a fairly strict review standard. Regardless o f the words it used to describe what it was doing, it had to conduct a fairly thorough, detailed and searching review of the agen­ cy’s action under the “arbitrary and capricious” standard in order to undermine the plausibility of the “justification” for NHTSA’s action. The case therefore illustrates rather strict judicial scrutiny o f agency policy decisions. It has been taken as authorization for such scrutiny in several later lower court cases.81 In light of these cases, State Farm

7835 Fed. Reg. 16,927 (1970) (to be codified at 49 C.F.R. §571).

™Id. wT h e Court refused to accept the agency’s “airbags” arguments in part because they were contained in the agency’s brief: the agency itself had not considered them. Cf. Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). Public Citizen v. Steed, 733 F.2d 93 (D.C. Cir. 1984); International Ladies’ Garment Workers’ Union v. Donovan, 722 F.2d 795, 804 (D.C. Cir. 1983), cert. denied, 105 S. Ct. 93 (1984).

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should not be seen as an unusual case, but rather as one example of many cases that reveal a “strict” review attitude.82 B. Comparative Institutional Competence One might ask with the “airbags” case in mind whether the judiciary is institutionally well suited for strict policy scrutiny. To what extent can a group of men and women, typically trained as lawyers rather than as administrators or regulators, operating with limited access to information and under the constraints of adversary legal process, be counted upon to supervise the vast realm of substantive agency policy­ making? First, to what extent are judges likely to sympathetically understand the problems the agency faces in setting technical standards in complex areas. In the “airbags case,” for example, the Supreme Court faulted NH TSA for not having more studies or more accurate studies. But was the Court fully aware o f how difficult it is for an agency seeking to set standards to obtain accurate, relevant, unbiased information? Where is the agency to look? Industry information is often “suspect,” insofar as industry’s economic interests are at stake. Consumer groups may be as “suspect” or biased, though perhaps in a different direction. Indepen­ dent experts may not have sufficiently detailed information or may have gotten it from industry. And, it may not be practicable adminis­ tratively for an agency to duplicate in-house all the expertise of others outside the federal government. Some information may, in fact, be unobtainable. For instance, was there any practical way for NHTSA to estimate the true cost o f airbags or to find out what reactions drivers would likely have to the “spool-type” belt? More important perhaps, how could it “objectively” define the likely reaction of Congress to the likely reaction of drivers? Is it then forbidden to take this factor into account? Why? T he agency must also deal with a host of complex questions in deciding what type of standard to promulgate. Should the standard aim directly at the evil targeted (traffic deaths) or at a surrogate (“bucklingup”)? How specific should the standards be? Should it try to force technological change by making the industry achieve goals beyond its present technological capabilities? Should it use a more flexible “per­ formance standard” or a more administrable “design standard”? The agency must have an enforcement system that will test compliance with* *2E.g.t South Terminal Corp. v. EPA, 504 F.2d 646 (1st Cir. 1974); Texas v. EPA, 499 F.2d 289 (5th Cir. 1974); Environmental Defense Fund v. Ruckelshaus, 439 F.2d 584 (D.C. Cir. 1971); Palisades Citizens Ass’n v. CAB, 420 F.2d 188 (D.C. Cir. 1969).

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the ev en tu al sta n d a rd . B ut this, too, is far easier said th an d o n e. T h e agency m ust design the sta n d a rd with o th e r en fo rcem en t n eeds a n d d e v e lo p m e n t costs in m ind. Is it u nreasonable to w eaken or sim plify s ta n d a rd s in o rd e r to increase the likelihood o f voluntary com pliance o r to stretch an already tight develo p m en t budget? T h e agency m ay also have to consider various com petitive concerns. How will a new sta n d a rd affect industry? Will it favor som e existing firm s o v er o th ers o r will it favor all existing firms by m aking e n try into the in d u stry m o re difficult? In d u stry , m oreover, is only one g ro u p whose interests the agency m u st con sider. W henever it regulates, the agency finds before it d if­ fe re n t g ro u p s, the industry, suppliers, consum er gro u p s, m em bers o f C ongress, a n d its own staff, with som ew hat d iffe re n t interests. A t the very least, each g ro u p may see d iffe re n t aspects o f the pro b lem as im p o rta n t: in d u stry m ay focus on costs, suppliers on com petitive fa ir­ ness, a n d co nsum ers on safety. Each g ro u p , m oreover, has a d iffe re n t w eap o n with which to th re a te n the agency. T h e staff can reco m m en d ch a n g e d stan d ard s. In d u stry can w ithhold o r p ro d u ce critical in fo rm a ­ tion o r th re a te n legal o r political action. C o n su m e r g ro u p s can th re a te n to ap p eal to C ongress o r to the public th ro u g h the press. A wise agency m ay recognize the w eapons that the various parties wield an d m ay sh ap e its stan d ard s to m inim ize opposition. It can th u s in ­ crease th e likelihood o f voluntary com pliance an d dim inish th e like­ lihood o f c o u rt delays. T h e agency’s final decision is likely to reflect som e d e g re e o f com prom ise am o n g all these interests. Such “c o m p ro ­ m ise” decisions are, in a sense, “political.” T hey m ay not be able to be s u p p o rte d th ro u g h p u re logic, b u t are they unreasonable? Is it su rp risin g , th en , that agencies and courts o ften disagree about w hat con stitutes a “reasonable” decision? T h e court m ay not a p p reciate th e ag en cy ’s n eed to m ake decisions u n d e r conditions o f u ncertainty. C o m p ro m ises m ade to secure ag reem en t am ong the parties m ay strike a c o u rt as “irra tio n a l” because the agency cannot “logically” explain them . Second, courts w ork w ithin institutional rules th a t d eliberately dis­ able th em fro m seeking o u t in fo rm atio n relevant to the in q u iry at h an d . For, while a ju d g e , e x p e rt in the law, is p e rm itte d to scan all form s o f legal au th o rity an d learn in g in reaching conclusions o f law (and is given th e resources to do so in the form o f libraries, c o m p u te r re searc h tools a n d train e d law clerks), in factual m atters he is lim ited to review o f a cold reco rd created by those over whom he has no control a n d who m ay have stro n g biases. A n ap p ellate ju d g e cannot ask an ex p e rt to answ er his technical

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qu estio n s o r go outside the reco rd to d eterm in e the p resen t state o f scientific o r technical know ledge. B ut the record itself tells only p a rt o f th e story, th e p a rt th at the advocates have chosen to let the court see. E ven if fairly com plete, a cold reco rd does not allow the ju d g e to prove th e case in g re at d e p th . A ju d g e can sp end th ree days read in g a record o f 4,000 pages an d still feel som ew hat unfam iliar with the facts. Docket p re ssu res m ake it un u su al fo r an appellate ju d g e to have even th ree days available fo r reco rd re ad in g in an individual case. T h e First C ircu it C o u rt o f A ppeals, for exam ple, has well over 1,000 cases p er year, an d each ju d g e on the co u rt writes fifty to sixty full published o p in io n s each year. Even if one assum es that ju d g e s o f courts that review m o re adm inistrative agency cases need write only th ree o r four, in stead o f five to seven, opinions p e r m onth, the ju d g e s will not have tim e to fam iliarize them selves with the enorm ously lengthy records. H ow can they analyze fully a record, fo r exam ple, reflecting 10,000 co m m en ts m ade in response to a notice o f proposed rulem aking?83 C an ju d g e s , w hen faced with such com plexity and detail, do m ore than ask, so m ew h at superficially, w h eth er the agency’s result is reasonable? Can th ey do m o re th an catch the grosser errors? C an they conduct the th o ro u g h , probing, in -d ep th review th at they prom ise?84 T hese reali­ ties a b o u t co u rt review provide little basis for any hope that such review will lead to significantly b etter policy. P erh a p s these arg u m e n ts sim ply restate the traditional view that agencies a re m ore “e x p e rt” on policy m atters than courts, and courts sh o u ld “d e f e r” to th e ir policy expertise. In recent years it has becom e fash io n ab le to d o u b t agency expertise, but these considerations should lead us to ask w h e th e r these doubts o ffer reasons for g re a te r reliance o n ju d icial review o r w h e th e r the substantive results o f such doubts will p ro p e rly deal with th e substantive problem . In short, can we be con­ fid en t, given the com parative institutional settings, th at stro n g ju d icial review will lead to b e tte r adm inistrative policy? T h o se skeptical o f the “real w orld” effectiveness o f judicial review o f agency policy decisions can find su p p o rt in the long battle waged b etw een th e C o u rt o f A ppeals fo r the D istrict o f C olum bia C ircuit and th e F ed eral C om m unications C om m ission. T h e court, in trying to im p ro v e the quality o f netw ork broadcasting, tried to force the C om ­ m ission to use intelligible “station-selection” standards. W henever the c o u rt rev ersed an FCC decision, how ever, the FCC would typically * **See, e.g., International Ladies' Garment Workers' Union, 722 F.2d at 804. *'See, e.g., Ethyl Corp. v. EPA, 541 F.2d 1, 35 (D.C. Cir. 1976).

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reach th e sam e conclusion on re m a n d , but simply su p p o rt it w ith a b e tte r reaso n ed o p in io n .85 Sim ilarly, a re cen t B rookings study argues th at the effect o f co u rt review o f en v iro n m e n ta l regulation, an area w here case law directs strict review o f policy decisions, has been random . In som e instances, co u rt-im p osed re q u irem en ts aim ed at pro tectin g th e en v iro n m e n t have h elp ed , b u t in o th e r instances, by distorting agency e n fo rc e m e n t p riorities, they have h u rt.86 F u rth e r, th e re is reasonably stro n g evi­ d en ce th a t co u rt review o f the F ederal Pow er C om m ission’s reg u la tio n o f n a tu ra l gas caused substantial econom ic h arm .87 In th e “airb ag s” case itself, th e S u p rem e C o u rt wrote: We think that it would have been permissible for the agency to temporarily suspend the passive restraint requirement or to delay its implementation date while an airbag mandate was studied.88 I f th e issue in th e case was w h e th e r S tan d ard 208 should have been su sp e n d e d fo r fu r th e r study ra th e r th an rescinded, one m ight ask w h e th e r th e C o u rt’s decision was likely to achieve any d iffe re n t sub­ stantive outcom e. In fact, the agency resp o n d ed to the decision with a ru le th a t will re q u ire airbags unless states with tw o-thirds o f th e n a ­ tio n ’s p o p u latio n enact m an d ato ry buckle-up laws. W h e th e r this rule takes effect or, like N H T S A ’s previous proposals, is eventually set aside rem ain s to be seen.89 M oreover, strict ju d icial review creates one incentive th at fro m a substantive perspective may be perverse. T h e stricter the review and th e m o re clearly an d convincingly the agency m ust explain th e need fo r change, the m ore re lu ctan t the agency will be to change th e status quo. C o n sider, fo r exam ple, the D.C. C ircuit’s re cen t review o f the F ederal H ighw ay A d m in istratio n ’s effo rts to sim plify the 30-year-old tru ck d riv er “logging” a n d re p o rtin g req u irem en ts, designed to help th e agency en fo rce a d iffe re n t ru le th at limits the n u m b e r o f consecu­ tive h o u rs a tru ck d riv e r may driv e.90 T h e m ajor question b efo re the *bSee Central Fla. Enters., Inc. v. FCC (Cowles II), 683 F.2d 503 (D.C. Cir. 1982). See generally S. B reyer & R. Stewart , supra note 43, at 426-66. ^R. S. M elnick , R egulation and the C ourts : T he C ase of the C lean A ir A ct (Brookings 1983). 87Breyer & MacAvoy, The Natural Gas Shortage and the Regulation of Natural Gas Produc­ ers, 86 H arv . L. Rev . 941 (1973). 88463 U.S. at 50 n.15. 89Some states have deliberately passed “buckle-up” laws that don’t qualify as such under NHTSA’s regulation, leaving open the possibility that drivers will face mandatory “buckle-up” laws and also payment for mandatory airbags. ^International Bhd. o f Teamsters v. United States, 735 F.2d 1525 (D.C. Cir. 1984).

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agency was w h e th e r to allow the industry to use n o n stan d ard iz ed form s, a ch ange th at one consultant estim ated would save about $160 m illion p e r year. T h e agency decision cam e a fte r its notice o f the p ro p o se d change, its receipt o f 1,300 com m ents, an d its m odifications o f its initial proposal. A bout two years elapsed from the tim e o f public notice until th e conclusion o f co u rt review .T he co u rt allowed the agency to sim plify m uch o f its standardized form , but the co u rt set aside two changes the agency wished to make. FH A h a d decid ed th a t d rivers still h ad to use a stan d ard ized grid show ing h o u rs d riv en an d also to include on the form : date, total miles d riv en today, tru ck n u m b er, c a rrie r nam e, signature, startin g time, office ad d ress, a n d rem ark s. It said, how ever, th at they could om it the n am e o f any co-driver, total m ileage today, hom e term inal address, total h o u rs, sh ip p in g d o cu m en t n u m b e r o r nam e o f sh ip p er, o r origin a n d d estin atio n points. T h e agency believed m any o f these item s w ere re d u n d a n t o r “u n n ecessary ” a n d th at deletion w ould “red u ce d riv er p re p a ra tio n s by ap p ro x im ately 50 p ercen t w ithout affecting the e n ­ fo rcem en t capability.” T h e co u rt held to the contrary, concluding th at th e a d d e d item s seem ed useful. It w ould help an en fo rce m e n t agency, fo r exam ple, to check with a co-driver o r sh ip p er to see if a log was accurate. In any event, th e co u rt said FH A h ad not adequately ex­ plain ed th e om issions.91 T h e agency also h ad decided to e x p a n d the scope o f an exem ption fro m its “log ru les,” an ex em p tio n th a t originally applied to “pick u p a n d d elivery” drivers, d efined as those who drive within a radius o f 50 miles a n d w hose d riv in g takes place within a 15-hour p erio d each day. In 1980, p e rh a p s recognizing th at pick u p an d delivery now often ex ten d s beyond 50 miles, the FH A changed the definition to 100 miles, b u t re d u c e d the h o u r p erio d to 12. In 1982 it increased the h o u r p erio d to 15. T h e c o u rt concluded th at the agency had no t adequately ex p lain ed why it m ade these changes; it should have fu rth e r investi­ g ated an “altern ativ e ,” nam ely having two exem ptions, one for “50 m iles/15 h o u rs ” a n d a n o th e r fo r “ 100 m iles/12 h o u rs.” O n e ca n n o t tell from the opin io n w h eth er co u rt o r agency is correct ab o u t the wisdom o f th e agency’s new policies. Yet, it is easy to im agine how th e h ead o f an agency m ight react to the c o u rt’s strict review o f the policy m erits o f w hat seem to be ra th e r trivial changes in re p o rtin g and ex am in atio n rules. T h e agency head m ight say, “Why bother? Why sh o u ld I try to sim plify paperw ork? A decision about w hat specific 91FH A had explained its reasoning in its brief, but the court said that the brief was not a proper place for such explanation to appear for the first time. See supra note 80.

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items to include on a log, o r the exact p o in t to draw an ex em p tio n line m ust, w ithin b ro a d limits, be arb itra ry . I suppose I could d o costbenefit analyses, an d h ire ex p erts to ‘field-test’ every possible change, b u t I h av e n ’t th e m oney. I ca n ’t re sp o n d in d e p th to every a rg u m e n t m ade in 1,500 com m ents ab o u t every m inor p o in t in this re c o rd ­ keep in g proposal. A n d , if I ’m n o t even allowed to wait to see, as to these very m in o r m atters, w hat a ch allen g er says in a c o u rt brief, a n d th e n re sp o n d in m y c o u rt brief, let’s fo rg et th e whole thing. I ’ll keep w h a t­ ever ru les I ’ve in h e rite d an d n o t try to m ake any m in o r im p ro v e ­ m en ts.” T h e reaso n agencies do n o t ex p lo re all arg u m e n ts o r co n sid er all alternatives is o n e o f practical limits o f tim e and resources. Yet, to have to ex plain a n d to pro v e all this to a review ing co u rt risks im posing m uch o f th e very b u rd e n th a t no t co n sid erin g alternatives aim s to escape. O f course, th e review ing courts may re sp o n d th at only impor­ tant altern atives a n d arg u m e n ts m ust be considered. B ut, w hat counts as “im p o rta n t”? D istrict courts o ften find th at parties, having barely m en tio n ed a legal p o in t at the trial level, suddenly m ake it the h e a rt o f th e ir case on appeal, em phasizing its (sudden but) su p re m e im p o r­ tance. A p pellate courts typically co n sid er such a rg u m e n ts as long as they have b een at least m en tio n ed in the district court. B ut district courts, u n like agencies d ealin g with policy change, do not face, say, 10,000 co m m ents challen g in g d iffe re n t aspects o f com plex policies.92 A nd, w hen ap p e lla te co u rts “answ er” an a rg u m e n t they w rite a few w ords o r p a ra g ra p h s, p e rh a p s citing a case o r two. A satisfactory answ er in th e agency co n tex t may m ean factfinding, em pirical re ­ search, d etailed investigation. A ccordingly, one re su lt o f strict ju d icial review o f agency policy decisions is a stro n g conservative93 p re ssu re in favor o f th e status q u o .94

92See supra note 83 and accompanying text. 93O f course, the extraordinary conservative pressure exerted by strict judicial review can have worse effects. NHTSA, for example, introduced a head restraint standard in 1971. It aimed to prevent whiplash injuries by stopping the head from jerking backwards when the car was hit from behind. A series o f studies however, later indicated that the standard had little safety value. NHTSA responded several times by proposing new standards, but because it could not obtain agreement from the interested parties and feared court review, it left the ineffective standard in place. There is no reason to think this kind o f agency behavior is desirable. ^VVould a court have set aside airline deregulation under the former statute as “unwise’? Months o f congressional hearings, detailed examination of the arguments, a lengthy report, and considerable study o f the subject by experts and nonexperts alike had created a broad policy consensus in favor o f reform, amply supported by economic logic and empirical data. T he challengers would have asked whether the agency had considered adequately, for example, the effects on fuel supply, the environment, or

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T h ese arg u m e n ts an d instances are essentially anecdotal; they do not prove th at strict ju d icial review o f policy is, from a policy perspective, u n h e lp fu l o r c o u n terp ro d u ctiv e. B ut they do seem stro n g en o u g h to im pose a b u rd e n u p o n those advocating such review as a m eans tow ard b e tte r o r wiser substantive policy to identify, investigate, a n d catalogue its successes. C. T o w a rd A p p ro p ria te Policy Review R econciliation U n fo rtu n ately , unlike th e review o f law discussed in P art I, no ready reso lu tio n to th e pro b lem o f ju d icial review o f policy is ap p a ren t, at least w ithin th e existing institutional constraints. T h e social im perative for co n tro l o f agency pow er is entirely consistent with existing institutional a rra n g e m e n ts in th e co n tex t o f review o f law. I f o ne believes th at the m o re im p o rta n t th e legal decision, the g re a te r the need for a check outsid e th e agency, increased judicial scrutiny autom atically seems a p p ro p ria te . C ourts a re fully capable o f rigorous review o f agency d eterm in a tio n s o f law, fo r it is the law th at they are ex p e rt in, an d it is in in te rp re tin g law th at th e ir legitim acy is greatest. In review ing the policy area, how ever, the p ressures fo r control o f agency pow er on the o n e h an d , an d fo r p ro p e r use o f existing institu­ tions on the o th e r h a n d , are dram atically opposed. O ne may believe th a t th e m ore im p o rta n t the policy decision, the g re a te r the need for a check ou tside the agency. B ut, fo r reasons o f “com parative ex p ertise,” in creased ju d icial scrutiny seem s less a p p ro p riate. It is this dilem m a th a t m akes a stable, a p p ro p ria te regim e fo r co u rt review o f policy a n early in tractable problem . T h a t is to say, one m ight conclude on the basis o f the discussion that w hen review ing the reasonableness o f agency policy courts should apply th e trad itio n al law (the “arbitrary, capricious” stan d ard o f sec­ tion 706(2)(A) o f th e A dm inistrative P rocedure Act) with the tra d i­ tional a ttitu d e o f “d e fe re n c e ” to agency expertise. C ourts would hesi­ tate to rev erse the results o f a m ajor rulem aking pro ceed in g o r to re m a n d fo r w hat is likely to am o u n t to several years o f new p ro c eed ­ ings. T h ey w ould do so only a fte r finding m ajor p ro ced u ral violations o r very u n reaso n ab le substantive results. Ju d g es w ould ap p ro ach cases like State Farm ra th e r like they ap p ro ach ju ry findings in a negligence action, asking w h e th e r reasonable regulators could reasonably have airport congestion; the possibility that local regulators will create local monopolies by tying up airport slots; the risk that two large airlines will control reservation systems bywriting a special computer program; and other features of the case that had not been examined in depth. Opponents could have multiplied plausible-sounding “alternative courses o f action” for the agency to investigate or explain away.

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com e to this conclusion, given n o t only the evidence before th em , b u t also th e constraints o f tim e an d o f the adm inistrative en v iro n m e n t in which th e agency m ust work. T h is type o f sta n d a rd , how ever, while c o h e ren t fro m a ju r is p r u d e n ­ tial perspective, is n o t totally satisfactory, fo r it does n o t re sp o n d to the re g u la to ry needs o u tlin e d at th e beg in n in g o f this article. F or o n e thin g , in ap p ly in g it the courts effectively abdicate th e ir role in co n ­ tro llin g agency policym aking. Yet, the fact rem ains th at C ongress has d eleg a ted to ad m in istrato rs in th e past fifteen years vast ad d itio n al re g u la to ry pow ers, o ften u n d e r vaguely w orded, o p e n -e n d e d statutes. Sim ple “re tr e a t” takes little account o f the growth o f agency power th a t gave rise to the d e m a n d for control. A fter all, th e substantive re g u la ­ tory co n cerns th a t have created p re ssu re for outside checks u p o n the exercise o f agency pow er continue to exist.95 O n e can still a rg u e in fav o r o f th e courts by claim ing th at the P resid en t’s effo rts will be affected greatly by th e politics o f the day96 a n d th a t congressional effo rts m ay be in co h eren t. Ju d g e s ten d to be som ew hat m o re n e u tra l politically; they will try to e x e rt the force o f reason o n w hat are basically technical rules aim ed at technocratic ends; and th e ir prestige will lead th e agencies to follow th eir guidance. F o r a n o th e r th in g , can one be certain about th e overall im pact o f ju d icial scrutiny o f agency policy? Does its presence act as an incentive w ithin th e agency tow ards m ore reasonable decisionm aking, a rm in g those w ho w ould fight an overly politicized decisionm aking process with a w eapon, th e sp ecter o f later co u rt reversal? W ould a relaxed ju d icial supervisory attitu d e be stro n g en o u g h to catch the occasional agency policy decision th at is in fact highly irratio n al?97 T h e se n agging d o u b ts are sufficiently serious to point, vaguely a n d suggestively, w ithout en d o rsem en t, to an alternative ap p ro a c h th a t m ay w a rra n t m o re serious study th an it has h ad to date. O n e m ight ex am in e th e practicality o f rem oving som e o f th e institutional co n ­ strain ts th a t now p re v e n t a co u rt fro m con d u ctin g effective policy review. C ould review ing courts be given the tools to p ro d u ce co h e ren t, b e tte r substantive agency policy? Suggestions have been m ade to create a specialized adm inistrative court. But, to m ake th e D istrict o f C o­ lum bia C o u rt o f A ppeals a g en u in e adm inistrative court, capable o f review ing the wisdom o f substantive policy, it w ould need an investiga9bSee supra text at notes 1-11. ^This is a special concern o f Judge Edwards. See Edwards, supra note 12, at 229-31; see also Breyer, Reforming Regulation, supra note 9. 97See, e.g., Aqua Slide ‘N ’ Dive Corp. v. Consumer Product Safety Comm’n, 569 F.2d 831 (5th Cir. 1978) (invalidating CPSC safety regulations for pool slides).

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tive staff. It w ould need the pow er to com pel the agency to p roduce facts n o t in the reco rd . It w ould have to be able to question an agency a b o u t its e n tire e n fo rce m e n t p ro g ram . A nd it would need some u n d e r­ sta n d in g o f how th at p ro g ram fits in with the work o f o th e r agencies. It w ould n eed access to a p p ro p ria te substantive experts. In sum , it w ould n ee d m any o f the pow ers cu rren tly given to the Office o f M anagem ent a n d B u d g et, in so far as it investigates an d coordinates regulatory p ro g ­ ram s. O th e r nations have followed this ap proach. U n d e r the F rench sys­ tem o f adm inistrative law, fo r exam ple, the pow er to review ad m in istrativ e action resides in an institutional d escendant o f the K in g ’s C ouncil, now an in d e p e n d e n t, nonpolitical adm inistrative c o u rt, called th e Conseil d ’E tat.98 M em bership in the Conseil is su p ­ p o sed to reflect relevant expertise. Some becom e m em bers afte r a d istin g u ish ed c a re e r in the F rench civil service; others are recent top g ra d u a te s o f the highly prestigious Ecole N ationale d ’A dm inistracion (EN A ), w here they have studied public policy and public ad m in istra­ tion. U p o n e n tra n c e into the Conseil the ENA g ra d u ate is assigned the investigation o f less im p o rta n t cases, an d is privy to its deliberations; is ro ta te d th ro u g h various o p e ra tin g d ep a rtm en ts o f the g overnm ent on special assignm ents, an d is th en eventually re tu rn e d to the Conseil. T h e resu lt is a collegial body, fam iliar with the practical problem s o f c re a tin g a n d m ain tain in g public policy th ro u g h adm inistration.99 M o reover, th e C onseil is not b o u n d by the strictures o f the adversary system . It has access to in fo rm atio n th ro u g h o u t the adm inistration. Its m em b ers co n d u c t an in d e p e n d e n t investigation o f each case and p re ­ sen t th e results w ithout being confined to a form al record. T h e m em ­ bers ch a rg ed w ith th e investigation m ake full use o f the C onseil’s in te rn a l ex p ertise an d also are expected to consult outside agencies and e x p e rts .100 In sh o rt, th e Conseil is given a wide variety o f tools which e n a b le it to discern n o t only w h e th e r a given policy conform s to law (as in A m erican courts) b u t also w h eth er it is wise public policy, som ething th a t o u r discussion suggests may be beyond the reach o f o u r judicial system as c u rren tly organized. W h e th e r o n e could tran sfo rm an existing court o f appeals into an in stitu tio n m o re closely resem bling the Conseil d ’Etat is debateable. M uch o f the C onseil’s effectiveness stem s from its ability to obtain

98S ^ generally L. N. B rown & J. F. G arner , F rench A dministrative Law 17-29 (Butterworths 1967). 99See id. at 30-40. mSeeid. at 41-57.

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in fo rm a tio n ex parte from within the adm inistration an d to co n d u c t its d elib eratio n s am o n g investigators an d ju d g e s in private, w ithout c o u n ­ sel p re sen t. Yet, A m erican judicial rules against ex parte co m m u n ica­ tions are n o t all constitutional in n atu re ; the use o f amici, special m asters, law clerks all suggest th at investigatory pow ers are not in ­ h eren tly beyond the ju d ic ia ry ’s reach. A nd, th e re are certain a d v a n ­ tages to looking at th e ju d iciary ra th e r th an say, O M B, as the nucleus fo r such an institution, nam ely g re a te r political in d ep en d e n ce, prestige th a t m ay m ean public acceptability, the ability to process individual co m p lain ts against agency behavior, an d m ore w idespread review o f agency policy w ithin th e sam e institution. Analysis o f such a radical tran sfo rm atio n o f existing m eth o d s o f policy review is well beyond the scope o f this article, n o r does this article en d o rse th at ap p ro ach . It only points to the existence o f the possibility; a n d it suggests th at analysis be u n d e rta k e n because, given th e p re se n t institutional dilem m a, it may be necessary to ex p lo re quite d iffe re n t ap p ro ach e s tow ard m akin g ju d icial review an effective check o n th e w isdom o f substantive policym aking by agencies. III. C O N C L U SIO N S P arts I a n d II taken to g e th e r suggest at least th re e conclusions. First, th e p re se n t law o f ju d icial review o f adm inistrative decisionm aking, the h e a rt o f adm inistrative law, contains an im p o rtan t anom aly. T h e law 1) re q u ires courts to d e fe r to ag en cy ju d g m en ts ab o u t matters o f law, bu t 2) it also suggests th at courts conduct in d ep en d e n t, “in -d e p th ” reviews o f a g e n c y ju d g m e n ts ab o u t matters o f policy. Is this no t the exact o p p o ­ site o f a ratio n al system? W ould one n o t expect courts to co n d u c t a stric te r review o f m atters o f law, w here courts a re m ore e x p e rt, but m o re len ien t review o f m atters o f policy, w here agencies a re m ore ex p e rt? S econd, in light o f th e anom aly, existing law is unstable. C h an g e o f som e so rt seem s likely. T h e direction th at the law m ight take as to review o f m atters o f law can be spelled o u t with clarity. B ut no such clarity o f d irection is possible in respect to review o f policy. O n th e one h a n d , th at ch ange m ight a m o u n t to “re tre a t,” with th e courts leaving it u p to th e o th e r branches o f g o v ern m en t to control agency excesses. O n th e o th e r h a n d , ch ange m ight seek to m ake policy review m o re effec­ tive. B ut, th a t change im plies the need fo r an exam ination o f radical tra n sfo rm a tio n o f existing institutions o f review. An exam ination seem s w a rra n te d to d eterm in e w h e th e r such effo rts should be m ade. T h ird , o n e can conclude, at a m inim um , that legislative proposals

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th a t sim ply try to lead the courts to exercise a m ore “in d e p e n d e n t” ju d g m e n t w hen review ing agency decisions o ffer little prom ise as a d irec tio n fo r m eaningful regulatory reform . In the area o f traditional “review o f agency decisions o f law” such a proposal has only a lim ited scope fo r m aking a significant difference. In the area o f judicial “re ­ view o f agency decisions o f policy” such a proposal would likely prove c o u n terp ro d u ctiv e. T h e problem seem s m ore one o f tailoring the c o u rts ’ legal obligations in th e ir area to th eir institutional capacities and stren g th s.

[4] The Procedural Reason for Judicial Restraint John Allison* Research Fellow in Law, Queens' College, University of Cambridge

European influence, judicial prom otions and developments in public law have draw n attention to judicial activism .1 Recent contributors to Public Law advocate greater judicial protection o f basic rights.2 In their various argum ents, they deal w ith the problem posed by the separation o f powers, judicial attitudes to statutory construction and the tra­ ditional distinction between judicial review and a decision on the merits. Lester, for example, describes how, for decades, judges were “ anxious to avoid treading on executive toes” and advocates that judges now develop the com m on law to remedy the absence o f a Bill o f R ights.3 He presents Lord Reid as a forerunner who helped expose the m yth that judges only declare the law .4 Lord Reid, however, recog­ nised an im portant restriction— that the Law Lords ought not to develop the law in complex disputes where “ it w ould be impracticable to foresee all the consequences o f tam pering with it.” 5 He restricted judicial activism in com plex disputes comparable to the polycentric dis-

* I would like to thank Yvonne Cripps, Christopher Forsyth, Genevra Richardson, Tony Smith and Bob Summers for their comments and advice. 1 See R. v. Secretary o f State fo r Transport, ex parte Factortame Ltd (N o. 2) [1991] 1 A.C. 603; M . v. Home Office [1992] Q.B. 270, C.A., esp. pp. 306G-307A, 308BC, [1993] 3 W.L.R. 433, H.L., esp. pp. 448F, 463F; Woolwich Equitable Building Society v. Inland Revenue Commissioners [1993] A.C. 70, esp. pp. 176F-177E, 198H-199A, 161C-G, 195F-196F; Pepper v. Hart [1992] 3 W.L.R. 1032; J. W. F. Allison, The Justification fo r an English Distinction between Public and Pri­ vate Law: A n Historical and Comparative A nalysis (1992), Doctoral Dissertation, University of Cambridge, (to be published by Oxford University Press), chaps. 4, 5 and 6; D. Rose, “Silent Revolution”, The O bserver May 9, 1993, pp. 45—46; J. Clark, “The Politics of Precedents”, The Times, July 28, 1993, p. 12. 2 The Rt Hon. Lord Browne-Wilkinson, “The Infiltration of a Bill of Rights” [1992] P.L. 397; The Hon. Sirjohn Laws, “Is the High Court the Guardian of Fundamental Constitutional Rights?” [1993] P.L. 59; A. Lester, “EnglishJudges as Law Makers” [1993] P.L. 269. 3 ibid. esp. p. 275. 4 ibid. pp. 269, 289. 5 Steadman v. Steadman [1976] A.C. 536 at 542C. See generally A. Paterson, The Law Lords (1982), pp. 154—189. See, e.g. Jones v. Secretary o f State fo r Social Services [1972] A.C. 944 at 1025F; Launchbury v. Morgans [1973] A.C. 127 at 137CD, 143A-D, 145H-146A; Miliangos v. George Frank (T ex tiles) Ltd [1976] A.C. 443 at 469G-470C, 479H-491 A. cf. R. Cross and J. T. W. Harris, Precendent in English Law (1991), P. 138.

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putes described by Lon L.Fuller6 in his w ork on the limits o f adjudi­ cation.7 The recent advocates o f judicial activism have not dealt with the implications o f Fuller’s classic exposition o f polycentric disputes. This article is intended to supplem ent their work. In this article, I will describe Fuller’s exposition and consider its continuing influence on academic public lawyers in England. I will argue that the polycentric disputes described by Fuller as unsuited to adjudication are m ore prevalent, at least in the administrative setting, than is recognised in Fuller’s w ork or by those w hom it has influenced. I will suggest that the developm ent o f English public law as advocated by Lester and others is rendered inappropriate by the limits o f adversarial adjudication described by Fuller. I will conclude that Fuller’s exposition o f polycentric disputes highlights a predica­ m ent for adversarial adjudication, a predicament that necessitates a re­ orientation and practical correctives to the adversarial procedures o f judicial review.

Fuller’s analysis of the limits of adjudication Fuller defines poly centric problem s as “ situation(s) o f interacting points o f influence” which, while possibly relevant to adjudication, normally, although not invariably, “involve many affected parties and a som ewhat fluid state o f affairs.”8 He stresses the “ complex repercussions” o f inter­ vention in such situations.9 He describes the polycentric situation with a m etaphor and num erous examples: We may visualize this kind o f situation by thinking o f a spider’s web. A pull on one strand will distribute tensions after a com pli­ cated pattern throughout the web as a whole. Doubling the original pull will, in all likelihood, not simply double each o f the resulting tensions but will rather create a different complicated pattern o f tensions. This would certainly occur, for example, if the doubled pull caused one or more o f the weaker strands to snap. This is a “polycentric” situation because it is “ many centered”—each cross­ ing o f strands is a distinct center for distributing tensions.10 6 L. L. Fuller and J. D. Randall, “Professional Responsibility: Report of the Joint Confer­ ence” (1958) 44 American Bar Association Journal 1159; L. L. Fuller, “Adjudication and the Rule of Law” (1960) 54 American Society fo r International Law Proceedings 1; “The Adversary System” H. J. Berman (ed.), Talks on American Law: A Series o f Broadcasts to Foreign Audiences by Members o f the Harvard L aw School Faculty (1961), pp. 30-43; “Collective Bargaining and the Arbitrator” [1963] Wisconsin L aw R eview 3, pp. 30 et seq.\ “Irrigation and Tyranny” (1965) 17 Stanford Law R eview 1021; The M orality o f L aw (1969), pp. 170-181; “Mediation—Its Forms and Functions” (1971) 44 Southern California Law R eview 305; “The Forms and Limits of Adjudication” (1978) 92 Harvard L aw R eview 353. See generally L. L. Fuller, The Principles o f Social Order: Selected Essays o f Lon L. Fuller, Edited by Kenneth /. Winston (1981); R. S. Summers, Lon L. Fuller (1984), pp. 90-100. 7 Patterson, supra, n. 5, pp. 172-174, 177-179. 8 “The Forms and Limits of Adjudication”, supra , n. 6, pp. 395, 397. 9 ibid . pp. 394—395. 10 ibid. p. 395.

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Fuller’s examples o f polycentric problem s include the testam entary allo­ cation o f paintings “ in equal shares” between tw o galleries, “ assigning the players o f a football team to their respective positions” , “ allocating scarce funds for projects o f scientific research” , “ redraw ing the boun­ daries o f election districts to make them correspond to shifts in popula­ tion” and “ allocating radio and television channels to make balanced program s as accessible to the population as possible.” 11 Fuller focuses12 on the problem posed for adjudication by disputes which are significantly polycentric. He characterises adjudication princi­ pally by reference to the m ode o f participation o f the parties— the adver­ sarial presentation o f proofs and reasoned argum ents. He distinguishes that participation from the participation in other forms o f social order­ ing, such as negotiating a contract and voting in elections.13 Polycentricity is problem atic for Fuller’s adjudication because14 participation by the presentation o f proofs and reasoned argum ents is affected by the complex repercussions o f judicial intervention. While the range o f those affected by the dispute cannot easily be foreseen and their participation organised, those who do participate— the parties to the action— lack dis­ crete issues to address. As a result o f inadequate participation, the adjudicator is inadequately inform ed and cannot determ ine the complex repercussions o f a proposed solution. Fuller describes how the solution adopted by the adjudicator may consequently fail to be satisfactory: “ Unexpected repercussions make the decision unworkable; it is ignored, w ithdraw n, or modified, sometimes repeatedly.” 15 In response to the inadequacy o f adjudication in a significantly poly­ centric dispute, Fuller did not simply depend on adjudicators in sub­ sequent similar disputes to relax the doctrine o f stare decisis and im prove upon an initial adjudicative solution.16 Such im provem ent would be at the cost o f legal certainty and would only restrict unw anted repercussions as experienced in subsequent disputes which go to court. Fuller’s general approach is to use the concept o f polycentricity to delimit adjudication. He opposed the general legislative use o f adjudica­ tive agencies to resolve disputes which are significantly polycentric. His analysis is also relevant to the adjudicative court or tribunal that must resolve the disputes subject to its jurisdiction. It shows that an adjudi­ cator, inform ed only by the litigating parties, is ill-equipped to deter­ mine the com plex repercussions o f a proposed decision. Because o f the adjudicator’s limited competence, the legislature m ust avoid creating 11 “Adjudication and the Rule of Law”, supra , n. 6, pp. 3—4. 12 See also L.L. Fuller, “The Law’s Precarious Hold on Life” (1969) 3 Georgia L aw R eview 530; Summers, supra , n. 6, pp. 96-98. 13 “The Forms and Limits of Adjudication”, supra , n. 6, pp. 363-365. 14 See also B. B. Boyer, “Alternatives to Administrative Trial-Type Hearings for Resolving complex Scientific, Economic, and Social Issues” (1972) 71 Michigan Law R eview 111, pp. 122 et seq.

15 “The Forms and Limits of Ajudication”, supra , n. 6, p. 401. 16 See ibid. p. 398; P. Weiler, “Two Models of Judicial Decision-Making” (1968) 46 adian Bar R eview 406, p. 423.

C an­

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tribunals to adjudicate in significantly polycentric disputes, and the adjudicator has reason not to resolve such disputes in ways which necessitate a judicial appreciation o f complex repercussions. From the perspective o f the adjudicator, Fuller’s analysis requires judicial restraint. To avoid exceeding the limits o f its ow n competence, a court confronted w ith a significantly polycentric dispute m ust refrain from tw o kinds o f activism. First, the court must not change the law where an appreciation o f repercussions is required for sensible legal development. Secondly, in so far as the court has a choice under existing law, it m ust avoid choosing a legal solution that necessitates an apprecia­ tion o f complex repercussions. The judicial restraint required by Fuller’s analysis was recently illus­ trated in the judgem ents o f Neill L.J. and Gibson L.J. in a case involving the Crim inal Injuries C om pensation B oard.17 The Hom e Secretary had decided to revise prospectively, but not retrospectively, an exclusionary rule o f the Crim inal Injuries Com pensation Scheme. T w o aggrieved persons unsuccessfully applied for judicial review. O n appeal, Neill L.J. avoided an investigation o f repercussions for the public purse by expli­ citly invoking the concept o f justiciability and Fuller’s analysis o f the limits o f adjudication. He refused to investigate the rationality o f the Hom e Secretary’s decision because that decision involved a polycentric task, a “ balance o f com peting claims on the public purse and the allo­ cation o f economic resources which the court is ill equipped to deal w ith .” Gibson L.J. preferred not to treat justiciability as an obstacle in limine but, when dealing with the merits, was reluctant to interfere on the ground o f irrationality for the same reason as that given by Neill L.J.— the court’s limited competence.

The influence of Fuller’s analysis Fuller’s analysis o f polycentric disputes has been influential in England and N o rth A m erica.18 D uring the last 20 years, it has influenced aca­ demics resisting judicialisation in areas o f English administrative law. Jowell, for example, opposes judicialisation o f the planning process by reference to Fuller’s analysis o f polycentric disputes.19 And, Macdonald analyses Fuller to restrict the rules o f natural justice to adjudicative 17 R .P . and T .G . v. Secretary o f State fo r the Home Department and Criminal Injuries Compensa­ tion Board , unreported judgment handed down on May 4, 1994. 18 SeeJ. Stone, Social Dimensions o f Law and fustice (1966), pp. 652-656; Weiler, supra, n. 16, pp. 423-426; Boyer, supra , n. 14; M. D. A. Freeman, “Standards of Adjudication, Judicial Law-Making and Prospective Overruling” (1973) 26 C.L.P. 166, pp. 182-189, 206-207; J. Jowell, “The Legal Control of Administrative Discretion” [1973] P.L. 178, pp. 213-218; R. A. Macdonald, “Judicial Review and Procedural Fairness in Administrative Law” (1980) 25 M cG ill L aw Journal 520, pp. 540-543, 26 M cG ill Law Journal 1, pp. 16-21; Paterson, supra , n. 5, pp. 172-174; J. H. Langbein, “The German Advantage in Civil Procedure” (1985) 52 Univer­ sity o f Chicago L aw R eview 823, pp. 843-844; P.P. Craig, Administrative L aw (2nd ed., 1989), pp. 213-217; P. Cane, A n Introduction to Administrative L aw (2nd ed., 1992), pp. 34-36, 170, 189. 19 ibid .

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administrative processes and to encourage the developm ent o f other norm s o f procedural fairness suited to other processes. Similar ideas are expressed in the textbooks o f Craig and Cane. Craig agrees with the gist o f M acdonald’s analysis2021 and Cane similarly uses Fuller’s concept o f polycentricity to elaborate on justiciability and to lim it the scope o f the rules o f natural justice.22 Craig adds to his description o f Fuller’s analysis the suggestion that "(i)t may well be the case that the very concept o f adjudication as applied to disputes between private individuals may well have to be modified in its application to litigation involving public bodies.”23 And, Cane limits the relevance o f Fuller’s analysis by applying it to adversarial adjudication rather than to adjudication in general.24 But, on the whole, academics in England have devoted little critical attention to Fuller’s w ork on the limits o f adjudication.25 Fuller’s w ork was incom plete.26 Fuller distributed his paper, “The Forms and Limits o f A djudication” ,27 and discussed it in his correspon­ dence w ith prom inent academics, but he did not regard it as sufficiently polished for publication.28 Fuller’s private papers, which are now kept in the H arvard Law School Library, include much o f that correspon­ dence. They are crucial to the understanding o f his paper, its incom ple­ teness and his failure to publish it. Fuller was troubled by significantly polycentric disputes (for example, those involving desegregation and em ploym ent discrimination) for which adjudication seemed necessary to protect the vital interests o f those involved.29 He also wished to incorporate in his analysis o f adjudication certain com m on decision­ making processes involving judicial investigation rather than partyparticipation.30 And, in his correspondence, he regretted the A ngloAmerican bias o f his paper on the limits o f adjudication: “ I am acutely aware that m y paper as it now stands is, as Steve Riesenfeld said, ‘horri­ 20 supra, 21 supra, 22 supra, 23 supra,

n. n. n. n.

18, pp. 540-543, 16-21. 18, pp. 213-217. 18, pp. 34-36, 170, 189. 18, p. 214. cf. generally P. P. Craig, Public L aw and Democracy in the United K ing­ dom and the United States o f America (1990), p. 176. 24 supra, n. 18, p. 170. 25 cf. M. A. Eisenberg, “Participation, Responsiveness, and the Consultative Process: An Essay for Lon Fuller” (1978) 92 Harvard Law R eview 410; O. M. Fiss, “The Supreme Court 1978 Term Foreword: The Forms ofjustice” (1979) 93 Harvard L aw R eview 1, pp. 39-45; G. Richardson, L a w , Process and Custody: Prisoners and Patients (1993), pp. 48-49, 62; J. W. F. Alli­ son, “Fuller’s Analysis of Polycentric Disputes and the Limits of Adjudication” (1994) 53 C.L.J. 367. 26 See Allison, ibid. pp. 377-378. 27 supra, n. 6. 28 Letter to S. Mermin, November 30, 1959, Lon Luvois Fuller Papers, Harvard Law School Library; K.I. Winston, Editor’s Note in Fuller, The Principles o f Social Order, supra, n. 6, p. 86. 29 See, e.g. Fuller, The Principles o f Social Order, supra, n. 6, p. 84; correspondence between Fuller, October 22, 1959, and F. C. Newman, October 19, 1959, Lon Luvois Fuller Papers, Harvard Law School Library. 30 Letter to W. Gellhorn, October 23, 1959, Lon Luvois Fuller Papers, Harvard Law School Library. See generally Allison, supra, n. 25, pp. 374-376, 378.

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bly A nglo-A m erican’. This is one reason why I am not yet ready to publish it.”31 Such doubts necessitate critical reconsideration o f Fuller’s analysis and the implications o f his insight into Anglo-American adjudi­ cation.

The prevalence of poly centric administrative disputes Fuller’s definition o f polycentric problems as “ situation(s) o f interacting points o f influence” , which “norm ally involve many affected parties and a som ewhat fluid state o f affairs” , is imprecise.32 His analysis o f polycentricity, mainly by m etaphor and example, does not provide the adjudicator with clear criteria to determine the outer limits o f a category o f significantly polycentirc disputes. It expresses an Anglo-American anxiety about the repercussions o f adjudication and reflects an inability to cope w ith them. I will argue that Fuller’s concept o f polycentricity is difficult to restrict to a limited category o f disputes, particularly from the perspective o f the adjudicator and at least in the administrative set­ ting. In order to show judicial restraint, the adjudicative court must first determ ine w hether the dispute is significantly polycentric. The court, however, m ust determ ine the dispute’s level o f polycentricity only on the basis o f inform ation supplied by the parties in court. The court will struggle to determ ine the dispute’s polycentricity for the same reason that it will struggle to resolve the polycentric dispute— the insufficiency o f participation by those who are affected but are not parties to the action. Delim iting adjudication in response to polycentric disputes begs the question o f their polycentricity. M oreover, in so far as the doctrine o f stare decisis is adhered to, almost any dispute is rendered polycentric by potential repercussions for later similar disputes. One o f Fuller’s correspondents questioned the impli­ cations o f Fuller’s analysis: “To the extent that judicial legislating is involved, in almost every case is it not impossible to afford each affected party a meaningful participation through proofs and arguments?”33 Fuller recognises the problem: There are polycentric elements in almost all problems submitted to adjudication. A decision may act as a precedent, often an awkward one, in some situation not foreseen by the arbiter. . . . In lesser measure, concealed polycentric elements are probably present in almost all problem s resolved by adjudication. It is not, then, a ques­ tion o f distinguishing black from white. It is a question o f knowing when the polycentric elements have become so significant and pre­ 31 Letter to F. F. Stone, January 22, 1960, Lon Luvois Fuller Papers, Harvard Law School Library. 32 “The Forms and Limits of Adjudication”, supra , n. 6, pp. 395, 397. 33 Newman’s letter, supra , n. 29, at no. 11. See also Fiss, supra , n. 25, pp. 42-43.

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dom inant that the proper limits o f adjudication have been reached.34 In Fuller’s analysis, there are no clear outer limits to the category o f sig­ nificantly polycentric disputes, only degrees o f polycentricity. The general difficulty o f drawing differences o f degree and o f apply­ ing the notion o f polycentricity in a limited way in the adm inistrative setting is illustrated in the little-know n but revealing exchange between Fuller and Frank N ew m an, one-tim e Professor in Adm inistrative Law at Berkeley. The issue concerned the polycentricity o f licence allocation. In an early draft o f “The Forms and Limits o f Adjudication” , Fuller had adopted an extrem e position. (I)f the allocation o f economic resources presents a polycentric problem , it follows, I believe, that all licensing functions are illsuited to adjudication. W here a licence is required to engage in some activity, the license is an economic good, a factor o f produc­ tion. This is so w hether the scarcity o f licenses results from some limitation supposedly im posed in the public interest (liquor licenses, taxi medallions) or represents a legislative recognition o f some natural scarcity (as in the case o f radio and TV channels). It is, I subm it, no accident that it is those agencies which are charged with licensing functions which have, by and large, the poorest reputations for judicial behaviour.35 In a letter com m enting on Fuller’s paper, Frank N ew m an suggested that this passage only applied to “econom ic” or “ scarcity” licensing as opposed to the licensing o f professionals, such as lawyers, pharmacists and pilots.36 In response, Fuller accepted the need to m odify his initial claim that all licensing involves polycentric problem s but resisted restricting his claim only to scarcity licensing. He argued that a dispute concerning a scarce taxicab licence was only too polycentric if the licence “entitled the holder to a certain route” : I believe . . . that we cannot define allocative functions that involve significant polycentic elements in terms o f “ scarcity.” Taxi medal­ lions are scarce. The question is rather w hether the allocation results in a pattern o f division, in which each allocation is interre­ lated w ith all the others. Thus, allocations o f radio channels, air routes, and riparian rights, are, by m y standards, unsuited to adju­ dicative treatm ent because (they are) “ to o ” poly centric.37 Fuller’s ultim ate denial that the allocation o f scarce licences involves 34 “The Forms and Limits of Adjudication”, supra, n. 6, pp. 397, 398. 35 Article handed out to Jurisprudence class of Harvard Law School, 1959/60, Lon Luvois Fuller Papers, Harvard Law School Library, p. 42. See also Fuller’s letter to the U.S. Senate’s Sub-committee on Administrative Practice and Procedure, May 18, 1959, Lon Luvois Fuller Papers, Harvard Law School Library. 36 supra , n. 29, at no. 12. 37 Letter to Newman, supra, n. 29. See also Fuller’s letter to Gellhorn, supra, n. 30.

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significantly polycentric problems is unconvincing. Fuller repeatedly argues that the allocation o f economic resources is too polycentric for adjudication to be appropriate.38 A scarce licence is clearly an economic resource or comparable com m odity. If licences are scarce, the allocation o f one licence affects the allocation o f other licences. It leaves fewer licences to be allocated and, so, reduces the likelihood that remaining licence applications will be successful. Fuller’s refusal to acknowledge the polycentricity o f scarcity licensing is inconsistent w ith his attitude to judicial awards o f compensation in the adm inistrative context. In a note, Fuller suggests that a court moves from adjudication to managem ent or adm inistration when it awards com pensation in an “on-going venture.”39 He m entions the example o f La Fleurette, in which the French Conseil d’État ordered the state to pay com pensation to a dairy company forbidden by statute from continuing to m arket its artificial cream as cream .40 But, if compensation for loss occasioned by ongoing state action is unsuited to adjudication because o f polycentricity, so too is allocation o f a benefit, such as a scarce licence, which continues to affect the general availability o f that benefit. An adjudicative court, which is only inform ed by the litigants, cannot con­ fidently determ ine entitlem ent to compensation in the light o f repercus­ sions for the use o f public finances. Similarly, it cannot confidently assess the allocation o f a scarce licence in the light o f the relative merits o f concurrent or later licence applications. It hears the proofs and reasoned argum ents o f the licensing authority and the applicant for a licence. It does not hear other applicants and therefore remains insuffi­ ciently inform ed o f the various issues affecting their applications. Frank N ew m an had good reason to suggest that the allocation o f scarce licences is beyond the limits o f adjudication as conceived by Fuller. The polycentricity o f scarcity licensing has implications for judicial review. Scarce public resources are analogous to scarce licences. Their allocation at one point affects their availability at another. The adjudica­ tive court hearing applications for judicial review does not itself make allocations in regard to public-law rights but it does review administrat­ ive decisions that have serious repercussions for the allocation o f resources. Assisted only by the partisan arguments o f the parties, the court is ill-equipped to determ ine the nature and extent o f those reper­ cussions. Because o f its limited competence, the court cannot confi­ dently assess the risk o f administrative disruption when it quashes adm inistrative decisions and requires their reconsideration. O f necess­ ity, it can decide only on a narrow legal ground, such as a recognised case o f procedural im propriety, which does not involve a judicial deter­ m ination o f repercussions. In disputes that are significantly polycentric 38 See, e.g. Fuller, “The Forms and Limits of Adjudication o f L aw , supra , n. 6, pp. 170 et seq.

\

supra , n.

6, p. 400;

The M orality

39 Box no. 10, folder no. 12, Lon Luvois Fuller Papers, Harvard Law School Library. 40 C.E. January 14, 1938.

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because they involve the allocation o f scarce licences41 or affect com par­ ably scarce public resources, the court has reason to show judicial restraint. Judicial restraint is, then, understandable not only in obviously political cases or in those directly affecting the central tenets o f govern­ m ental policy but also in num erous everyday adm inistrative disputes. A lthough understandable, judicial restraint is not ideal. Even w hen considering a narrow ground o f challenge, the court cannot confidently determ ine the irrelevance o f repercussions when it only relies on parti­ san argum ent about the scope o f vague statutory formulas, general prin­ ciples o f review and the judicial discretion nevertheless to deny a rem edy in particular circumstances. In recognising and resolving the issues in polycentric adm inistrative disputes, the court is incom petent to deter­ mine the irrelevance o f repercussions for the same reason that it is incom petent to determ ine their nature and extent— the limited participa­ tion o f affected parties. If Fuller’s analysis is correct, the adjudication o f significantly polycentric adm inistrative disputes is questionable w hat­ ever the apparent issue and w hatever the degree ofjudicial restraint. N um erous adm inistrative disputes are affected by the limits o f adjudi­ cation as described by Fuller. Various com m on conceptions o f govern­ m ent or the state adm instration can be used to explain the prevalence o f adm inistrative disputes that are significantly polycentric. First, if governm ent is characterised by its access to the public purse, a dispute involving the use o f that purse affects alternative uses. Secondly, if governm ent furthers collective goals, num erous citizens may be con­ cerned w ith the furtherance o f those goals. Thirdly, if governm ent has a duty to show individuals equal concern and respect, the issue o f concern for one individual affects other individuals. Fourthly, if governm ent furthers a plurality o f interests rather than an unequivocal public inter­ est, adm inistrative disputes will frequently involve that plurality. And, fifthly, if governm ent is a means by which various groups trade effec­ tively in benefits which offset continuing hardships, then a dispute involving one benefit affects the denial o f another. Significantly-polycentric disputes do not only involve governm ent. They have in fact become increasingly com m on in m odern societies characterised by what Cappelletti calls “ massification”— “a m ass-pro­ duction, m ass-distribution, and mass consum ption econom y” in which “ (d)amages caused by unhealthy packaging, by discharge o f waste, by false publicity, or by violations o f collective labour agreements may concern masses o f consumers, employees, and entire com m unities.” 42 In the absence o f a clear understanding o f the distinctness o f governm ent the very distinction between public and private law is questionable,43 but if any o f the conceptions o f governm ent, listed above, can be 41 cf. M clnnes v. Onslow-Fane [1978] 1 W.L.R. 1520; Cane, supra , n. 18, pp. 178-180. 42 M. Cappelletti, The Judicial Process in Comparative Perspective (1989), p. 25. See, e.g. T e x ­ aco v. M ulberry Filling Station [1972] 1 All E.R. 513; Launchbury v. Morgans, supra , n. 5; Hesperdes Hotels L td v. M uftizade [1979] A.C. 508. 43 Allison, supra , n. 1, chap. 2.

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accepted, adm inistrative disputes, alongside num erous other disputes, can also be expected often to be too polycentric to be resolved satisfac­ torily by adjudication.

The procedural obstacle to effective protection Fuller had considerable experience in practice before administrative agencies,44 and perceived, to some extent, the extensive implications o f his analysis for adm inistrative law. He sent his paper, “ The Forms and Limits o f Adjudication” ,45 to various administrative lawyers.46 He also related his analysis to the U nited States Senate’s Sub-com m ittee on Adm inistrative Practice and Procedure and initially agreed to serve on that sub-com m ittee.47 In his papers on adjudication, Fuller cited num er­ ous examples o f adjudicative administrative agencies to illustrate the im proper use o f adjudication.48 He alleged that the “solution o f poly­ centric problem s by adjudication has m ost often been attem pted . . . in the field o f adm inistrative law .”49 Elsewhere, Fuller expressed scepti­ cism o f the distinction between private and administrative (or public) law. As Chairm an o f the Harvard Law School’s curriculum com­ m ittee,50 he w rote a report which opposed the proliferation o f courses in specific branches o f administrative law and advocated, in their place, courses, such as Land Use, Unfair Com petition and Problems in C om ­ mercial Law, involving a “ synthesis o f public and private-law consider­ ations.” 51 Fuller questioned the development o f an autonom ous administrative law because he appreciated the limits o f adjudication and because he associated adm inistrative law initially with contract and later with managerial direction, the forms o f social ordering that he considered to be better suited to the resolution o f polycentric problem s.52 In an early unpublished paper entitled “The Philosophy o f Administrative Law” , Fuller reached this conclusion: “ I see the legitimate objective o f adminis­ trative law as that o f fostering free contract, where practical obstacles prevent it from being free, and o f im posing results similar to those 44 Fuller’s letter to E.V. Long, January 14, 1964, Lon Luvois Fuller Papers, Harvard Law School Library. 45 supra , n. 35. 46 See, e.g. letters of Newman, supra, n. 29, and W. Gellhorn, October 19, 1959, Lon Luvois Fuller Papers, Harvard Law School Library. 47 See correspondence between Fuller, May 18, 1959, and the Sub-committee on Adminis­ trative Practice and Procedure, September 17, 1963, Lon Luvois Fuller Papers, Harvard Law School Library. 48 See, e.g. Fuller, “Adjudication and the Rule of Law”, supra, n. 6, pp. 7-8; “Irrigation and Tyranny”, supra, n. 6, esp. pp. 1041-1042; The M orality of L aw , supra, n. 6, pp. 170-177; “Mediation”, supra, n. 6, pp. 334-337. 49 “The Forms and Limits of Adjudication”, supra, n. 6, p. 400. See also ibid., p. 355. 50 See generally Summers, supra, n. 6, pp. 141-144. 51 Preliminary Statement o f the Committee on Legal Education of the Harvard Law School, March 1, 1947, Lon Luvois Fuller Papers, Harvard Law School Library, pp. 87 et seq., esp. p. 90. See also Fuller, The M orality o f L aw , supra, n. 6, p. 176. 52 See Allison, supra, n. 25, pp. 373-374.

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which w ould be reached by free contract, if free contract could in fact safely be allowed to function.”53 Later, he described adm inistrative law as the prim e example o f a case “ where managerial direction and law are intertw ined or m erged.’04 In his debate with legal positivists, Fuller clearly contrasted law and managerial direction.55 Between the tw o, in a tw ilight zone, he identified adm inistrative law. He once alleged that “ (in adm inistrative law), if law exists at all, it exists imperfectly— it is still in process o f being b o rn .”56 Fuller’s allegation m ight seem dated but deserves careful consider­ ation. A dm inistrative disputes are, if anything, m ore polycentric than Fuller acknowledged. The reason for Fuller’s reluctance to accept adm inistrative law is still relevant. It explains contem porary procedural difficulties in developing an English adm inistrative law com parable to that o f the C ontinental systems. The judicial refusal both to establish the general liability o f adm inistrative authorities in negligence and to adopt the Continental principle o f proportionality illustrates the difficulties. First, in Dorset Yacht Co. v. Home Office, Lord Diplock gave a procedural reason for refusing to recognise the H om e Office’s liability in negligence for adopting a m ethod o f supervising Borstal boys.57 He stressed the range o f interests affected by the H om e Office’s decision and concluded that the “ material relevant to the assessment o f the reform ative effect upon trainees o f release under supervision or o f any relaxation o f control while still under detention is not o f a kind which can be satisfactorily eli­ cited by the adversary procedure and rules o f evidence adopted in Eng­ lish courts o f law . . . ”58 Secondly, in Brind v. Home Secretary, Lord Lowry refused to recognise an English doctrine o f proportionality beyond the rubric o f Wednesbury unreasonableness, in part, because “judges are not . . . furnished w ith the requisite know ledge and advice” to perform the required balancing exercise.59 Indeed, as described by Fuller, adjudicators should rely only upon the “ advice” , the proofs and argum ents, o f the litigants, and are, therefore, ill-suited to resolve an issue o f proportionality involving a determ ination o f permissible governm ent priorities w ith its extensive ram ifications.60 Recently, the courts have been activist in a num ber o f celebrated cases but their activism is problematic. In the Woolwich case, the m ajority in the House o f Lords developed the law so that “ m oney paid by a citizen to a public authority in the form o f taxes or other levies paid pursuant to 53 February 18, 1994, Lon Luvois Fuller Papers, Harvard Law School Library, p. 22. See also L.L. Fuller, “Governmental Secrecy and the Forms of Social Order” in C.J. Friedrich (ed.), Community: Nomos II (1959) 256, pp. 260-261. 54 Note, box no. 10, folder no. 12, Lon Luvois Fuller Papers, Harvard Law School Library. 55 Fuller, The M orality o f L aw , supra, n. 6, pp. 204 et seq. 56 “Adjudication and the Rule of Law”, supra, n. 6, p. 1. 57 [1970] A.C. 1004. 58 ibid. p. 1067B-F. See also Western Fish Products Ltd v. Penwith D.C. [1981] 2 All E.R. 204 at 221HI. 59 [1991] 1 All E.R. 720 at 739BC. 60 Contra Laws, supra, n. 2, pp. 71-75.

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an ultra vires dem and by the authority is prim a facie recoverable as of rig h t.”6162 Strong dissents, however, were voiced by Lord Keith and Lord Jauncey because o f possible repercussions. Lord Keith was preoc­ cupied with the question o f the possible disruption o f public finances: It seems to me that formulation o f the precise grounds upon which overpaym ents o f tax ought to be recoverable and o f any exceptions to the right o f recovery, may involve nice considerations o f policy which are properly the province o f Parliament and are not suitable for consideration by the courts. In this connection the question of possible disruption o f public finances must obviously be a very material one. Lord Jauncey was concerned with similar wide-ranging questions which he regarded as unsuited to judicial resolution: To apply the W oolwich principle as initially enunciated w ithout lim itation could cause very serious practical difficulties o f adminis­ tration and specifying appropriate limitations presents equal diffi­ culties. For example, what, if any, knowledge is required on the part o f a payer at the time o f paym ent to entitle him to recovery at a later date? O r how long should any right to repayment last? Is it in the public interest that a public authority’s finances should be dis­ rupted by wholly unexpected claims for repaym ent years after the money in question has been received? These are all matters which w ould arise in any reform o f the law to encompass some such prin­ ciple as W oolwich contend for and are matters with which the legislature is best equipped to deal.63 The judicial restraint o f Lord Keith and Lord Jauncey is defensible64 because o f the polycentricitv o f a dispute affecting public finances. The Factortame litigation65 provides a similarly questionable example o f judicial activism. It raised the issue o f the availability o f interim relief against the C row n. The European C ourt o f Justice affirmed that the House o f Lords “had jurisdiction, in the circumstance postulated, to grant interim relief for the protection o f directly enforceable rights under C om m unity law and that no limitation on . . . (that) jurisdiction imposed by any rule o f national law could stand as the sole obstacle to preclude the grant o f such relief.”66 To give effect to the European Com m unities Act 1972, the House o f Lords consequently disregarded 61 supra , n. 1., esp. p. 177F. See also, e.g. H a zell v. Hammersmith and Fulham L.B.C. [1991] 2 W.L.R. 372; M. Loughlin, “Innovation Financing in Local Government: The Limits of Legal Instrumentalism—Part 2“ [1991] P.L. 568; Pepper v. Hart, supra , n. 1, esp. pp. 1059B-E, 1038BC (J.H. Baker, “Statutory Interpretation and Parliamentary Intention” (1993) 52 C.L.J. 353 at 354). 62 ibid. p. 161FG. 63 ibid. p. 196EF. 64 cf. J. Beatson, “Public law, Restitution and the Role of the House of Lords” (1993) 109 L.Q.R. 1. 65 supra, n. 1. 66 As described by Lord Bridge in the House of Lords, ibid. p. 658D.

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the apparent rule o f national law precluding interim relief against the C row n and considered the “ balance o f convenience” to determ ine w hether a proper case for the grant o f relief had been made out. The attem pt o f the House o f Lords to determ ine the balance o f conve­ nience illustrates the w orking o f adjudication in a significantly polycen­ tric setting. Pending a ruling by the European C ourt o f Justice on the validity o f the relevant provisions o f the M erchant Shipping Act 1988, the House o f Lords tried to weigh the public interest in continued appli­ cation by the C row n o f those provisions against the damage that would continue to be suffered by Spanish-controlled fishing companies thereby prevented from fishing with vessels registered in Britain. Lord G off in the House o f Lords agreed w ith the conclusion reached by Neill L.J. in the Divisional C o u rt.67 Neill L.J. had tabulated the rival contentions o f the applicants for interim relief and o f the Secretary o f State. O n the one hand, by reference to supporting affidavits, counsel for the applicants had alleged that, if interim relief were not granted, “ financial conse­ quences for them would be disastrous” because o f the absence o f alternative fishing grounds.68 Counsel also argued that “ the activities o f some o f the applicants bring very substantial benefits to the local com ­ munity. ”69 O n the other hand, counsel for the Secretary o f State alleged that those benefits were “ m uch exaggerated” and that the applicants were causing “ very considerable damage to . . . the genuine British fleet.”70 Counsel argued that account m ust also be taken o f the “ public interest as expressed both in the Act and . . . in the C om m on Fisheries Policy, which is specifically designed to protect national com m uni­ ties.”71 Neill L.J. reached the following conclusion: I see the force of the argument that, if the C om m on Fisheries Policy is intended to protect traditional fishing communities o f the M em berStates, great im portance m ust be given to any measures which are designed for that purpose. In the present case, however, I am not in the end persuaded on the present evidence that there are identifiable per­ sons or com m unities whose activities o f livelihood are at present being so seriously damaged, or will be so seriously damaged, as to outw eigh the very obvious and immediate damage which w ould be caused by these new provisions if no interim relief were granted to the applicants.72 (Emphasis added) The uncertainty o f Neill L.J. is suggested by the words in italics. The adjudicative procedures followed by the court did not assure a m ore confident conclusion. Neill L.J. had to depend on the partisan proofs and arguments o f counsel and could not draw on any independent 67 1bid. p. 676BC. 68 R . v. Transport Secretary, e x p . Factortame Ltd [1989] 2 C.M.L.R. 353 at 376, para. [49]. 69 ibid, at para. [50]. 70 ibid, at 377 para. [52]. 71 ibid, at para. [53]. 72 ibid. p. 378, para. [55] (my italics).

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sources o f evidence. He was nevertheless required to determine how disapplying provisions in an Act o f Parliament would affect the appli­ cants and the public interest. O f necessity but w ithout clear justification, he gave overriding weight, not to the extent o f damage, but to its obviousness and immediacy, and to the identifiability o f persons or com m unities affected. The House o f Lords was given little further evidence from the parties and was left unsure o f its reliability. Their Lordships were furnished with up-to-date evidence in the form o f answers to a questionnaire sent to owners o f fishing vessels and an affidavit from the M inistry o f Agri­ culture, Fisheries and Food. Lord G off com m ented as follows on the questionnaire: N one o f the answers to the questionnaire was on oath; and it was not in the circumstances possible for the Secretary o f State to test the answers, or indeed to check their accuracy. H ow ever no objec­ tion was made to this material being placed before your Lordships. The answers to the questionnaire were not complete. However, from the answers received it was possible to derive the following basic inform ation.73 After presenting the “ basic inform ation” from the questionnaire answers, Lord G off reiterated the affidavit evidence from the M inistry o f Agriculture, Fisheries and Food to the effect that the owners o f the British fishing vessels advantaged by the new register would “ suffer serious losses” if the applicants’ vessels returned to the British fleet.74 Lord G o ff s conclusion is tacked on: However, even taking this evidence fully into account, I have, on all the material available to your Lordships, formed the same opinion as that form ed by Neill L.J. in the Divisional C ourt on the material then before him, that there was not sufficient to outweigh the obvious and immediate damage which would continue to be caused if no interim relief were granted to the applicants.75 Lord G off did not take direct evidence from the owners or managers of the British fishing vessels that had taken the place o f the applicants’ ves­ sels. And, he lacked an independent source o f evidence upon which to rely. Like Neill L.J., Lord G off therefore resolved a wide-ranging issue concerning access to fishing grounds, benefits to local communities and a statute’s effect on national communities by reference to the obvious­ ness and im mediacy o f damage to the applicants. The obvious prevailed over what was relevant but difficult to ascertain. In his m inority judgm ent, Lord Bridge recognised the “ exceptional

73 supra, n. 1, p. 675EF. 74 ibid. p. 675H-676B. 75 ibid. p. 676BC.

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difficulty” o f weighing “ irreparable dam age” to the applicants against “ substantial detrim ent to the public interest.”76 Unlike Lord Goff, he was “inclined to say . . . that the public interest should prevail and interim relief be refused” , but he preferred a narrow legal ground for his decision: “ In the circumstances I believe that the m ost logical course in seeking a decision least likely to occasion injustice is to make the best prediction we can o f the final outcom e and to give to that prediction decisive w eight in resolving the interlocutory issue.”77 His evasive tactic was necessitated by the polycentricity o f a dispute involving interim relief against the C row n. If judicial restraint had been exercised through application o f the rule o f national law precluding interim relief against the C row n, the difficul­ ties experienced by their Lordships would have been avoided. That rule was not the sole obstacle to the grant o f such relief. A nother obstacle was the procedural incom petence o f adjudicative courts in a polycentric setting. Fuller was aware that his analysis exposed a predicament. He noted the objection that “ w ithout the guarantees afforded by adjudicative pro­ cedures governm ental pow er is subject to grave abuse.”78 In his corre­ spondence w ith Professor N ew m an, he refused to condem n the American desegregation decrees o f the mid-1950s but stressed their “ serious moral drain on the integrity o f adjudication.” 79 Fuller sought to clarify the limits o f adjudication but recognised the occasional need for adjudication beyond the limits he identified.80 The English courts face a similar predicam ent. In polycentric administrative disputes they follow ill-suited adjudicative procedures but nevertheless seek to give effective protection to rights under European C om m unity law and rem ove dis­ parities with rights under English law .81 M oreover, the English courts are often confronted with the reality o f legislative inaction. Lord G off com m ented on the right to repaym ent in the Woolwich case:” . . . I fear that, how ever com pelling the principle ofjustice may be, it w ould never be sufficient to persuade a governm ent to propose its legislative recog­ nition by Parliament; caution, otherwise know n as the Treasury, w ould never allow this to happen.”82 In such a situation, judicial restraint is unsatisfactory while judicial activism is ill-informed. The predicam ent necessitates procedural reform.

76 ibid. pp. 659G-660A. 77 ibid. p. 660A-E. 78 The M orality o f L a w , supra, n. 6, pp. 176-177. 79 supra, n. 29. 80 See also, e.g. Fuller, The Principles o f Social Order, supra, n. 6, p. 84. See generally Fuller, “The Forms and Limits of Adjudication”, supra, n. 6, pp. 405 et seq.\ Allison, supra, n. 25, pp. 373-374. 81 See, e.g. the Woolwich case, supra, n. 1, p. 177C-E. cf. M . v. Home Office, supra, n. 1, esp. pp. 306G-307A, 308BC, C.A., 448F, 463F, H.L. See generally R. Caranta, “Governmental Liability after Francovich” (1993) 52 C.L.J. 272. 82 ibid. p. 176FG.

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Reforming adversarial adjudication Fuller’s concept o f adjudication is adversarial. Fuller characterises adjudication prim arily by reference to the participation o f the litigating parties. He derives the office o f the judge— the responsibility to be impartial, to reach a reasoned decision and to respond only to the par­ ties’ proofs and argum ents— from the requirem ent o f meaningful partyparticipation.83 Fuller’s adversarial concept o f adjudication aggravates the objection to the adjudication o f poly centric disputes. The judge who responds only to the proofs and arguments o f the parties cannot ensure that relevant repercussions are considered or that affected parties other than the litigating parties participate in proceedings. Fuller seems to have recognised that the objection to the adjudication o f poly centric disputes was partly the result o f his adversarial concept of adjudication. He was prepared to consider modifications. He stressed that “in the search for institutional safeguards against abuse (of govern­ mental power) we need not confine ourselves to adjudicative procedures in the strict sense, but may also consider the model(s) suggested by the French Conseil d’État . . . ”84 In a note, Fuller even described the process involving a rapporteur “ w ho studies (the) case and makes a report” as a “special form ” o f adjudication which “ m ight accommodate a greater degree o f polycentricity.”85 Later com m entators on Fuller’s analysis identified the emergence o f concrete correctives to adversarial adjudication in American public law litigation.86 Professor Eisenberg at Berkeley described the “ consultative process” , a form o f social ordering similar but different to adjudication as conceived by Fuller.87 He explained that, whereas both adjudication and the consultative process require that the decision-maker attend and reply to the parties, only the adjudicative decision need be strongly responsive to their proofs and reasoned arguments: The consultative process is distinguished from adjudication by the fact that the norm o f strong responsiveness is inapplicable— that is, the decision need not proceed from or be congruent with the par­ ties’ proofs and arguments. Instead, the decision-maker may base his decision solely on evidence he has him self collected, on his own experience, on his institutional preferences, and on rules neither adduced nor addressed by the parties.88 In this consultative process, the judge is freed from the norm o f strong responsiveness to the parties’ proofs and arguments and, so, can con­ 83 “The Forms and Limits of Adjudication”, supra, n. 6, pp. 365-367. 84 The M orality o f L aw , supra, n. 6, pp. 176-177. 85 Note, Box no. 10, folder no. 12, Lon Luvois Fuller Papers, Harvard Law School Library. 86 Eisenberg, supra, n. 25, pp. 426 et seq.; A. Chayes, “The Role of the Judge in Public Law Litigation” (1976) 89 Harvard Law R eview 1281. See Summers, supra, n. 6, p. 109. 87 ibid . 88 ibid. esp. p. 414.

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sider and take into account repercussions neglected by them in signifi­ cantly polycentric disputes. Eisenberg did not present the consultative process as a pure abstrac­ tion. He suggested that it approxim ated to the em ergent American “ public law litigation m odel” described by Professor Chayes o f H arvard University in an earlier influential article.89 Chayes had show n how the trial judge in cases involving statutory and constitutional interpret­ ation^0 had begun to play an increasingly active role in shaping the scope o f the dispute, investigating the extended impact o f judgm ent and fash­ ioning appropriate relief.91 He had explained how judges had managed to fill that role by “increasingly resort(ing) to outside help— masters, amici, experts, panels, advisory com m ittees— for inform ation and evalu­ ation o f proposals for relief.”92 And, he had stressed the range o f tech­ niques available to judges to im prove the representation o f interests affected by the extensive repercussions o f judicial intervention: He (the judge) can, for example, refuse to proceed until new parties are brought in, as in the old equity procedure, where the categories o f necessary and proper parties converged. In class actions, the ju dge may order such “notice as may be required for the protection o f members o f the class or otherw ise for the fair conduct o f the action,” including “ sampling notice” designed to apprise the judge o f significant divisions o f interest am ong the putative class, not brought to light by its representatives . . . The judge can also appoint guardians ad litem for unrepresented interests. And as we have seen, he can and does employ experts and amici to inform him ­ self on aspects o f the case not adequately developed by the parties. Finally, the judge can elicit the views o f public officials at all levels.93 In short, Chayes had described the emergence o f an American “ public law litigation m odel”94 alongside the traditional bipolar adversarial model and approxim ating to Eisenberg’s consultative process. In England, leading figures have begun to make procedural proposals which w ould help address the objection to the adjudication o f polycen­ tric disputes injudicial review cases. Calls for correctives to the adver­ sarial procedures o f judicial review are not yet loud but have become increasingly audible. For a few years now , Lord W oolf has been advo­ cating a Director o f Civil Proceedings: . . . I have long been concerned as to w hether our adversarial pro89 ibid. pp. 426-431. cf. Fiss, supra, n. 25, esp. pp. 35 et seq. Sec also A. Chayes, “The Supreme Court 1981 Term Foreword: Public Law Litigation and the Burger Court” (1982) 96 Harvard L aw R eview 4. 90 e.g. cases involving school desegregation, employment discrimination and the rights of inmates. 91 supra, n. 86. 92 ibid. pp. 1300-1301. 93 ibid. pp. 1311-1312. 94 ibid. esp. p. 1302.

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cedure, which applies to judicial review in the same way as it applies to an ordinary action, sufficiently safeguards the public. It has been suggested again recently that there is a need for a Minister o f Justice. If this is too dramatic a constitutional innovation, I w ould suggest consideration should be given to the introduction into civil procedure o f an independent body w ho can represent the public. For the want o f a better title, I should like to see established a D irector o f Civil Proceedings who at least in administrative law proceedings would have a status similar to that o f the Director o f Public Prosecutions in criminal proceedings.95 Lord W oolfs Director o f Civil Proceedings would not only fulfil the role o f the present Attorney-General in civil proceedings, but would also be “ responsible for providing arguments to assist the court . . . in those cases where in his view the issues were such that inter partes argu­ m ent m ight not adequately draw attention to the broader issues.”96 He stresses that the “ D irector would have general responsibility for the developm ent o f the civil law and in particular public law . . . ”97 Lord W oolf also advocates m ore extensive reliance on tribunals with more investigative procedures than those o f the High Court. He suggests that “ (t)here could therefore be an advantage in the High C ourt having the ability to remit issues requiring the investigation o f facts to an appropri­ ate tribunal, where they could be investigated in a m ore appropriate m anner than is possible in adversarial proceedings before the High C ourt. ”98 In his H arry Street Lecture, Professor Griffith advocated a general shift from adversarial to “ inquisitorial” procedures in judicial review cases involving “ political issues and the public interest.”99 With critical reference to the G .C .H .Q ., Tisdall and G .L .C . cases,1 he argued that the courts were handicapped by an adversarial tradition. He stressed that the litigants cannot generally be relied upon to draw the court’s atten­ tion to all relevant inform ation. Therefore, apart from proposing a pub­ lic officer comparable to Lord W oolf s Director o f Civil Proceedings, he suggested that the courts be more prepared to allow the cross-examin­ ation o f deponents on their affidavits, to order the production o f further 95 H. Woolf, “Public Law—Private Law: Why the Divide? A Personal View” [1986] P.L. 220, pp. 235-236. See also S. SedleyJ., “Test Cases injudicial Review” (December, 1993), p. 4 (unpublished). See generally Cane, supra, n. 18, pp. 103-104; Law Commission Consul­ tation Paper No 126, Administrative Lau>: Judicial R eview and Statutory Appeals (London 1993), in para. 9.20, 9.28. ™H. Woolf, Protection o f the Public: A N ew Challenge (1990), pp. 109-113, esp. p. 110. 97 ibid . pp. 111-112. 98 H. Woolf, “Judicial Review: A Possible Programme for Reform” [1992] P.L. 221, p. 230. See also H. Woolf, Bentham Club Presidential Address, February 28, 1994, to be published in [1995] Current Legal Problems. 99 J. A. G. Griffith, “Judicial Decision-Making in Public Law” [1985] P.L. 564, p. 565. See generally M. Loughlin, Public Law and Political Theory (1992), pp. 216— 217. 1 C .C .S .U . v. M inister fo r the C ivil Service [1985] A.C. 374; Defence Secretary v. Guardian Newspapers [1985] A.C. 339; Bromley L .B .C . v. Greater London Council [1983] 1 A.C. 768.

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docum ents,2 to investigate the travaux préparatoires,3 to rely on the evi­ dence o f expert adm inistrators and “ to receive and pay attention to ami­ cus briefs.”4 In the absence o f a shift away from the adversarial procedures o f judicial review, Griffith suggests that “ we are getting the w orst o f tw o w orlds” : “We have an interventionist judiciary but a judiciary which is limited by procedures and practices designed to exclude certain sources o f inform ation and factual investigation w ithout which the policy choices made by the courts— that is, their decisions— are inevitably less good than they could b e.”5 Griffith made this obser­ vation in 1985. Since then, the need for correctives to adversarial pro­ cedures has, if anything, become greater as the courts have become m ore activist in the polycentric setting o f adm inistrative disputes. In a m ore recent edition o f Public Law , Professor Loughlin criticises judicial intervention in the dispute concerning the swaps transactions o f the H am m ersm ith C ouncil.6 He shows how the ruling that swaps trans­ actions by a local authority are ultra vires is based on a limited judicial understanding o f the swaps market. He lays the blame, in part, on adversarial judicial procedures which did not assure the representation o f all local authorities involved in the swaps m arket and which did not preclude a coloured judicial appreciation o f the nature o f that involve­ m ent.7 He identifies some shift, in England, towards the managerial judicial role o f American public law litigation as described by C hayes.8 He doubts, how ever, w hether procedural modifications will be suf­ ficient to answer the challenge to the English adjudicative tradition.9 In short, his critique o f the Hammersmith case raises the issue o f com prehen­ sive procedural and institutional reform. In the wake o f the H am m ersm ith swaps litigation, the Legal Risk Review C om m ittee was established to consider possible reforms. It recom m ended the creation o f the Financial Law Panel and envisaged, inter alia, that the Panel m ight file “ Brandeis briefs” to set out the reper­ cussions o f a proposed judicial decision in litigation affecting financial m arkets.10 Its recom m endation is a response to the continuing pressure for the reform o f adversarial judicial procedure. Professor Loughlin’s criticisms and the proposals both o f Lord W oolf and Professor Griffith go beyond the procedural reforms o f the last 15 years and the present concerns11 o f the Law Com mission. The partial 2 See also Woolf, supra , n. 98, p. 230. 3 See now Pepper v. Hart, supra, n. 1. 4 supra, n. 99, pp. 581-582. See also Lord Simon’s dissenting judgment in Miliangos v. George Frank (T ex tiles) Ltd, supra, n. 5, pp. 490H-491A; H. Woolf, “A Hotchpotch of Appeals—The Need for a Blender” (1988) 7 C.J.Q. 44, p. 50; Sedley, supra, n. 95, p. 2. 5 ibid. p. 580. 6 supra , n. 61. 7 ibid. p. 596. 8 supra, n. 86. 9 supra, n. 61, pp. 595-598. 10 Final Report o f the Legal Risk R eview Committee (1992), Appendix 3, section 2. 11 See Law Commission Consultation Paper, supra, n. 95.

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relaxation o f the exclusionary rules o f standing12 has been a limited reform which has only facilitated the adversarial participation o f those w ith the inclination, interest and resources to participate in proceedings. The rapid im plem entation o f m ore comprehensive and systemic reform s to the adversarial tradition, such as those proposed by Griffith, w ould be difficult. Procedural changes are, in part, the result o f histori­ cal accident and do not follow simply upon perceptions o f need.13 They may have knock-on effects which are difficult to ascertain. More inves­ tigative judicial procedures, for example, m ight necessitate effective safeguards relating to the appointm ent, training and supervision o f Eng­ lish ju d g es.14Jacob suggests that the “ system o f English civil justice has no choice but to retain its adversarial basis. It cannot replace this basis by adopting the inquisitorial system as it operates in the civil law countries o f Europe, since this w ould require the creation o f a new corps o f law­ yers, w ho w ould be career ju d g es.” 15 M ore investigative judicial pro­ cedures w ould be costly and w ould certainly lengthen cases and further overburden16 the judges on the C row n Office List. Such procedures w ould also encounter17 an emotive opposition to Continental “inquisit­ orial” procedures as if a shift from adversarial to “inquisitorial pro­ cedures” were a choice between all or no thing.18 They would be seen by m any to com prom ise the litigant’s rights to participate in litigation. H ow exactly the practical difficulties are to be overcome is beyond the scope o f this article. Correctives to adversarial procedures that are necessary in principle deserve continuing attention. They should receive it from the W oolf com m ittee established by the Lord Chancellor, inter alia, fundamentally to re-examine “ the role o f the courts in the handling o f cases” 19 and contem plating the possibility o f “procedural judges” and a shift in the control o f cases from the parties and their lawyers to the ju d g es.20 Incremental reforms such as the increased use o f amicus briefs or the introduction o f W oolf s Director o f Civil Proceedings21 would be rendered feasible by relatively modest changes to the allo­ 12 See Supreme Court Act 1981, s. 31(3); R. v. Inland Revenue Commissioners, ex p. National Federation o f Self-Em ployed and Small Businesses Ltd [1982] A.C. 617. cf R. v. Secretary of State for the Environment, ex p. Rose Theatre Trust Co. [1990] 1 Q.B. 504. 13 See, e.g. B Kaplan, “Civil Procedure—Reflections on the Comparison of Systems” (1960) 9 Buffalo L aw R eview 409. 14 See generally S. R. Gross, “The American Advantage: The Value of Inefficient Litiga­ tion” (1987) 85 Michigan Law R eview 734, pp. 748-752. 15J. I. H. Jacob, The Fabric o f English C iv il Justice (1987), pp. 17-19, 264-265, esp. p. 264. cf J. I. H. Jacob, The Reform o f C iv il Procedural Law and Other Essays in C ivil Procedure (1982), p. 25. 16 See generally Woolf, supra, n. 98. 17 cf Langbein, supra, n. 18, pp. 843-848; Gross, supra, n. 113, pp. 748-756; Kaplan, supra, n. 112, pp. 421, 431-432. 18 See J. A. Jolowicz, “Adversarial and Inquisitorial Approaches to Civil Litigation” in E. G. Baldwin (ed.), The Cambridge Lectures (1983), chap. 21, at p. 237; Langbein, supra, n. 18, pp. 841-844. 19 Press Notice, Lord Chancellor’s Department, March 28, 1994. 20 The Observer, May 29, 1994, pp. 1, 3. 21 See supra, pp. 31-32.

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cation o f resources. The D irector’s role could initially be restricted to those disputes least suited to adversarial adjudication and could increase as m ore resources are made available. The objections in principle to the D irector’s role should be easier to address than the practical difficulties. The relatively reduced role for liti­ gants w ould be rendered m ore acceptable by the D irector’s increased concern for the others affected by a significantly polycentric dispute.22 M oreover, any enhancem ent o f the investigative powers o f the court could be accompanied by the adversarial safeguard o f the principle o f contradiction, the principle that the litigants be given the opportunity to respond to any points raised through the ju d g e’s ow n m otion. Various devices m ight be used to assure that opportunity. Fuller him self recom ­ m ended the “ tentative decree’’ and “ requests for reargum ent” where the adjudicator is m inded to decide on grounds not argued by the parties.23 And, Walter Gellhorn, one-tim e Professor in Adm inistrative Law at Colum bia U niversity, suggested that the “ interm ediate report pro­ cedure o f adm inistrative tribunals” in the U nited States be added to Fuller’s recom m endations.24 Judicial initiative and investigation for the sake o f others affected by a polycentric dispute need not necessarily be at the expense o f a litigant’s right to participate in proceedings.

Conclusion Reform ing adversarial procedures will be difficult but is nonetheless necessary. Fuller’s analysis o f the limits o f adjudication is the source o f a procedural justification for the judicial restraint o f an adversarial court. It suggests that such a court is insufficiently inform ed to determ ine the ramifications o f a dispute which is significantly polycentric. It is con­ founded by the prevalence o f adm inistrative disputes that are too poly­ centric to be resolved satisfactorily by adjudication. Fuller therefore seems to have been willing to countenance some departure from adver­ sarial adjudication to assure judicial safeguards against governm ental abuses. Those who now advocate that the English courts develop a dynam ic public law to remedy the absence o f an English Bill o f Rights or to enhance the accountability o f governm ent should be similarly open to procedural change. In 1906, Roscoe Pound delivered his famous paper entitled “ The Causes o f Popular Dissatisfaction w ith the Adm inistration o f Justice” to the American Bar Association.25 He called for an end to “American exaggerations o f . . . contentious procedure” and the rejection o f the “ sporting theory o f justice.”26 His call for a fundamental re-orientation 22 See Eisenberg, supra, n. 25, pp. 427-428. 23 “The Forms and Limits of Adjudication”, supra , n. 6, p. 389. 24 Letter, October 19, 1959, Lon Luvois Fuller Papers, Harvard Law School Library. 25 Speech, August 29, (1906) 40 American L aw R eview 729. See generally R. Cotterrell, Politics o f Jurisprudence: A Critical Introduction to Legal Philosophy (1989), pp. 157-159. 26 ibid . pp. 738-739, 749.

The

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helped prepare the way for later correctives to the American adversarial tradition. Today, in England, we require a similarly fundamental re­ orientation to facilitate the developm ent o f judicial review and to accom m odate changes resulting from the grow ing European influence. The practical challenge is to introduce concrete and inexpensive correc­ tives to adversarial procedures, correctives that would facilitate, where necessary, the judicial resolution o f significantly polycentric disputes. Dicey expressed a traditional scepticism towards rights in the absence o f adequate rem edies.27 He required the ordinary courts to give effect to rights in particular cases between individuals. If those courts must now take rights seriously in administrative disputes, they must follow pro­ cedures which assure that they are adequately inform ed when they make them effective.

27 A. V. Dicey, pp. 195-202.

A n Introduction to the Study o f the L aw of the Constitution

(10th ed.,1959),

Part II C ross-cu rren ts

[5] THE LIMITS OF JUDICIAL REVIEW OF EXECUTIVE ACTION— SOME COMPARISONS BETWEEN AUSTRALIA AND THE UNITED STATES Justice Ronald Sackville

IN T R O D U C T IO N

The new administrative law in Australia dates from the implementation, over a period of more than a decade, of the substance of the proposals advanced by the Kerr Committee and its successors in the early 1970s.1 The now familiar legislation swept away many of the procedural obscurities associated with the prerogative writs, codified the general principles governing judicial review of administrative action and provided for independent merits review of administrative decisions .2 These reforms paved the way for the emergence of what commentators have described as a "distinctively Australian jurisprudence in public law ".3 It is hardly necessary to say that Sir Anthony Mason played a pivotal role in the development of the distinctive jurisprudence, both through his membership of the Kerr Committee and his judgments in the leading administrative law cases of the 1980s and 1990s. Although remaining distinctive, Australian administrative law has nonetheless undergone considerable change since the implementation of the Kerr Committee proposals. In particular, the permissible boundaries of judicial review have moved, depending on the emphasis (or lack of it) given by courts to the virtues of judicial restraint. But during these movements two principles have been accepted, generally without challenge, as fundamental in determining the proper scope of judicial review. The first is that courts exercising powers of judicial review must not intrude into the "merits" of administrative decision-making or of executive policy making. The second is that it is for the courts and not the executive to interpret and apply the law,

1

2 3

Commonwealth Administrative Review Committee, Report (P P No 144, 1971) (Kerr Committee Report) reprinted in R Creyke and ] McMillan (eds), The Making of Commonwealth Administrative Law (1996). This volume includes the reports of the Bland Committee (Final Report of the Committee on Administrative Discretions (P P No 316, 1973) and the Ellicott Committee (Prerogative Writ Procedures: Report of Committee of Review (P P No 56,1973)). The Administrative Appeals Tribunal Act 1975 (Cth) came into force on 1 July 1976; Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) came into force on 1 October 1980; Freedom of Information Act 1982 (Cth) came into force on 1 December 1982. R Creyke and J McMillan, "Administrative Law Assumptions... Then and Now", in R Creyke and J McMillan (eds), The Kerr Vision of Australian Administrative Law—A t the Twenty-Five Year Mark (1998) at 1.

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including the statutes governing the power of the executive. These can be regarded as the twin pillars of judicial review of administrative action in Australia. While the solidity of the twin pillars is not often challenged, they may be more fragile than is usually assumed. The United States experience indicates that neither is an inevitable feature of administrative law in a federal system, even one which accepts the doctrine of separation of powers. It may be, therefore, that the apparent fundamentals of Australian administrative law are considerably less settled than orthodox doctrine might suggest. A S S U M P T IO N S U N D E R L Y IN G T H E N E W A D M IN IS T R A T IV E L A W

Despite the undeniable importance of the work of the Kerr Committee, its work (like that of all reformers) has not escaped criticism. Some commentators have pointed out that the broad vision of the Kerr Committee was not matched by a similar breadth of philosophy about the role of administrative law .4 The Kerr Committee Report took as its starting point that the "vast range of powers and discretions" capable of detrimentally affecting the citizen required, as a matter of justice, that the individual should have more adequate opportunities of challenging an adverse decision .5 The Committee did not think it "a matter of real debate" that there was "an established need for review of administrative decisions ".6*The Committee opted for a system of administrative review described by Professor Pearce as: heavily lawyer oriented and heavily rule oriented... very much the sort of package that it could be expected that a committee of lawyers would produce/

In short, the Committee's proposals were designed in large measure to achieve justice to individuals who were involved in disputes with public agencies, although the Committee recognised that this objective had to be balanced against the need to preserve the "efficiency of the administrative process ".8 The Kerr Committee did not necessarily envisage fundamental changes in the role played by courts in the exercise of powers of judicial review. Both for constitutional and policy reasons, it accepted that the proposed Commonwealth Superior Court or Administrative Review Court should be invested with a supervisory jurisdiction only .9 But the Committee envisaged that judges would be heavily involved in merits review (as personae designatae). It also envisaged that the simplification of procedures governing judicial review and the codification of the grounds of review would not merely reduce complexity, but encourage recourse to the courts and "facilitate" judicial review of administrative decisions. While the judicial function in relation to administrative decision-making was to remain supervisory, the stage was set for greater intervention by the courts in order to protect individuals dissatisfied with decisions of public agencies.

4 5 6 ^ 8 9

Ibid at 5. Kerr Committee Report, above n 1 at para 11. Ibid at para 10. D Pearce, "The Fading of the Vision Splendid" (1989) 58 Canb Bull of Pub Admin 15 at 18, cited in R Creyke and J McMillan, above n 3 at 9. Kerr Committee Report, above n 1 at para 12. Ibid at para 247. See also Chapter 4.

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In retrospect, it can be seen that the Kerr and Bland Committees reported at a time (the early 1970s) when the "traditional" role of government, as the largely unchecked regulator and dispenser of largesse, was at its height. Their reports largely pre-dated the implementation of a philosophy of public sector managerialism and of other measures designed to produce a more representative bureaucracy open to public influence and more accountable to the community .10 They also pre-dated the full flowering of corporatisation and privatisation, developments that have limited the opportunities for traditional forms of judicial review of administrative action .11 The timing of the reports doubtless provides a partial explanation for the faith of their authors in legal processes, including independent merits review, as the principal mechanism for protecting the individual against the excesses of the bureaucratic state. Underpinning this faith was a perception that the political constraints on the conduct of the executive were simply too weak to afford adequate protection to the individual. As Sir Gerard Brennan noted in an extra-judicial comment, the courts have been prom pted to widen the boundaries of judicial review in response to a perceived diminution of legislative control over executive power .12 Similarly, Sir Anthony Mason (in his judicial capacity) supported the extension of judicial review to decisions made in the exercise of the Crown's prerogative by insisting that ministerial responsibility cannot be an adequate safeguard for the citizen whose rights are affected by governmental action .13 These observations reinforce the view that the courts have seen themselves as filling a gap created by the failure of political forms of accountability to provide redress, or even comfort, to individuals adversely affected by government decisions. T H E B O U N D A R I E S O F J U D I C I A L R E V IE W

It is not surprising, then, that in the aftermath of Parliament's endorsement of the principles of judicial review of administrative action (by the enactment of the Administrative Decisions (Judicial Review) Act 1977 (Cth)), the courts expanded the scope of judicial review .14 The landmarks of this expansionary period are well-known. The decision in Kioa v West,15 for example, laid the foundations for the pervasive operation of the duty to afford procedural fairness, by holding that the duty applied whenever public officials have the capacity "to destroy, defeat or prejudice a person's rights, interests or legitimate expectations ".16 The authoritative analysis by Mason CJ,

10 11 12

13 14 15 16

R Sackville, "The Boundaries of Administrative Law—The Next Phase" in R Creyke and J McMillan, above n 3 at 89-90. M Allars, "Private Law But Public Power: Removing Administrative Law Review from Government Business Enterprises" (1995) 6 PLR 44. Sir Gerard Brennan, "The Purpose and Scope of Judicial Review" in M Taggart (ed), Judicial Review of Administrative Action in the 1980s (1988) at 19. Of course, legislative control over (or at least scrutiny of) executive action varies depending on the political make-up of the houses of Parliament, especially the upper house: cf Egan v Willis (1998) 195 CLR 424; Egan v Chadwick (1999) 46 NSWLR 563. The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 222. See generally R Sackville, above n 10 at 93-97. (1985) 159 CLR 550. Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ. The scope of the duty was expanded further by the recognition in Minister for Immigration and

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in Minister for Aboriginal Affairs v Peko Wallsend Ltd,17 of the circumstances in which a decision-maker will be held to have failed to take into account a relevant consideration, opened the way to close scrutiny of administrative decisions both on that ground and the counterpart ground of taking into account irrelevant considerations .18 Courts were prepared to adopt robust techniques of statutory construction to control the exercise of apparently broad discretionary powers by administrative decision-makers .19 Once the courts adopted a more interventionist role in relation to executive action, difficult issues were swiftly brought into focus. For example, judicial review is often seen as antithetical to administrative efficiency.20 Courts exercising powers of judicial review may be forced to the pragmatic recognition that an orderly and expeditious decision-making process should not be placed at risk by excessive intervention on the part of the courts .21 It may also become apparent, although the point is perhaps not frequently articulated in judicial decisions,22 that an expansive approach to judicial review will impose a burden on courts that they are ill-equipped to handle. And increased intervention by the courts in executive decision-making is likely to enliven debate about the proper limits of the functions of courts exercising the judicial power of the Commonwealth. These factors have contributed to a marked retreat from the broadest conceptions of judicial review in Australia .23 Considerations of administrative efficiency influenced the High Court's relatively narrow construction of the expression "decision of an administrative character" in the Administrative Decisions (Judicial Review) Act 1977.24 Similar considerations prompted the courts to adopt a more cautious approach to the requirements of procedural fairness than the earlier authorities might have suggested .25 More recently, the High Court has been willing to accept that Parliament means what it says, for example when it curtails the jurisdiction of the Federal Court to review particular categories of administrative decisions .26 In the same spirit, the High Court has upheld the constitutional validity of legislation which permits a federal court to decide only specified and limited aspects of a justiciable controversy between

17 18 19 20

21 22 23 24 25 26

Ethnic Affairs v Teoh (1995) 183 CLR 273 that ratification of a treaty could give rise to a legitimate expectation that the Minister would act in conformity with it. (1986) 162 CLR 24 at 39-42. For example, Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65 (Shephard and Ryan JJ, Woodward J dissenting). For example, Chaudhary v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 84 (FC); Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 (FC) reversed by the High Court Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. "Efficiency" in administrative decision-making is itself an ambiguous concept. It can be defined to include adherence to procedural safeguards and the making of correct decisions: P Wilenski, "Social Change as a Source of Competing Values in Public Administration" (1988) 47 Aus ] of Pub Admin 213 at 218. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 337 per Mason CJ. Compare S Breyer, "Judicial Review of Questions of Law and Policy" (1986) 38 Admin L Rev 363 at 390 pointing to the practical difficulty of courts closely scrutinising agency decisions involving thousands of pages of material. R Sackville, above n 10 at 98-101. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. See, for example, New South Wales v Canellis (1994) 181 CLR 309 reversing Canellis v Slattenj (1994) 33 NSWLR 104. Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577.

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an individual and the executive .27 Despite the narrowing of the scope of judicial review, some apparently fundamental principles of administrative law have appeared to remain constant. These principles—the twin pillars of judicial review—are closely associated with the High Court's interpretation of Chapter III of the Constitution. T H E F O U N D A T I O N S F O R T H E T W IN P IL L A R S

The High Court has insisted on the separation of Chapter III judicial power from other functions of government. Chapter III jurisprudence in Australia has been heavily influenced by the Court's assessment of whether the discharge of a particular function by a court exercising federal jurisdiction might "sap public confidence in the judiciary "28 and for that reason be incompatible with the exercise of judicial power. In Wilson v Minister for Aboriginal Affairs, for example, the High Court considered that a Ministerial request to a Chapter III judge to prepare a report "as an integral part of the process of the Minister's exercise of power" exposed the judge to the necessity of making decisions that were "political in character ".29 The critical constitutional defect in that request, and in the judge's acceptance of it, was that these events were seen by the High Court as impairing public confidence in the judiciary. Similarly, in Ruble v Director of Public Prosecutions, the draconian preventative detention powers conferred by the Community Protection Act 1994 (NSW) were said to "compromise the integrity of the Supreme Court of New South Wales" (a court exercising the judicial power of the Commonwealth) and to threaten "public confidence in the [judicial] process ".30 The High Court's repeated emphasis on the necessity to preserve public confidence in the judicial process is of considerable significance for judicial review of executive action. At one level, the significance is practical, rather than theoretical. The courts' powers of judicial review, although legitimised and endorsed by legislation, are by no means popular among opinion leaders or, for that matter, the community generally. Sir Anthony Mason has confessed to "some feelings of disappointment" that the benefits of a simplified and more comprehensive system of judicial review have not been more evident to administrators and lawyers alike .31 More significantly, as Sir Anthony recognised, the lack of enthusiasm for lawyers and legal processes (especially judicial review) is not confined to administrators, but extends to business people, union officials and, above all, politicians .32 To this must be added the obvious point that the exercise of powers of judicial review will frequently place the courts in the position of overriding, if only temporarily, important decisions or policies of representatives of elected governments. It is therefore hardly surprising that the exercise of such powers

27 28 29 30

31 32

Abebe v Commonwealth (1999) 162 ALR 1. Wilson v Minister for Aboriginal and Torres Strait islander Affairs (1996) 189 CLR 1 at 12 per Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ. Ibid at 18-19. Kable v Director of Public Prosecutions (1996) 189 CLR 51 at 107 per Gaudron J. Despite the views of the High Court, one suspects that a very substantial majority of the population of New South Wales, if asked, would express approval of legislation designed to keep an apparently dangerous person in custody beyond the period of his sentence, with or without a further conviction. Sir Anthony Mason, "Reflections on the Development of Australian Administrative Law" in R Creyke and I McMillan (eds), above n 3 at 122. Ibid at 123.

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often generates criticism that is not necessarily couched in terms likely to increase public confidence in the judiciary .33 At another level the concept of public confidence in the judicial process raises issues of principle, although it may be that practical considerations can never be entirely divorced from questions of principle .3453The High Court has been acutely conscious of the need to protect and preserve the legitimacy of the role played by the courts in judicial review of executive action. This is illustrated by the reaffirmation in Minister for Immigration and Ethnic Affairs v Wu Shan Liang35 of the principle that judicial review of an administrative decision cannot be turned into a reconsideration of the merits of the decision .3637The Court cited a well-known passage from the judgment of Brennan ] in Attorney-General (NSW) v Quin37 in support of its warning that courts must not use judicial review to trespass into the field reserved to the decision-maker. It is Brennan J's judgm ent which provides the most detailed principled justification for the proposition that "proper principles" preclude the courts undertaking "merits" review of administrative decisions. In Attorney-General v Quin, Brennan J made five related points :38 • First, the essential warrant for judicial supervision of administrative action is the declaration and enforcement of the law affecting the extent and exercise of power. The duty and jurisdiction of courts in Australia are reflected in the famous words of Marshall CJ in Marbury v Madison: "It is, emphatically, the province and duty of the Judicial Department to say what the law is . " 39 • Secondly, the court's duty and jurisdiction does not go beyond the declaration and enforcement of the law which determines the limits of the repository's power:

33

34 35 36

37 38 39

See, as one example among many, the criticism of the decision in Lam v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Sackville J, 4 March 1998, unreported): B Walkley, "$3m Heroin Cache—But He Can Stay", Daily Telegraph 5 March 1998 at 5 and Editorial, Daily Telegraph, 5 March 1998 at 10. In Lam, the decision of the Administrative Appeals Tribunal deporting the applicant was set aside on the principle of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, since the Tribunal had failed to alert the applicant to its intention not to give effect to the best interests of the applicant's child as a "primary consideration" consistently with the requirements of Art 3 of the United Nations Convention on the Rights of the Child. There was no appeal from the decision of the Federal Court. The Tribunal subsequently set aside the decision to deport the applicant: Re Lam and Minister for Immigration and Multicultural Affairs (1999) 28 AAR 431. On the tensions generated by the Federal Court's jurisdiction to review immigration decision-making, see generally J McMillan, "Federal Court v Minister for Immigration" (1999) 22 AML Forum 1. Compare R A Posner, The Problematics of Moral and Legal Theory (1999) ch 4. (1996) 185 CLR 259. Ibid at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. The Court also accepted the need for the reviewing court to adopt a "beneficial construction" of the reasons of the decision-maker, so that the reasons are "not construed minutely and finely with an eye keenly attuned to the perception of error". The language approved by the High Court is that of a Full Court of the Federal Court in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. (1990) 170 CLR 1 at 35-36. Ibid at 35-38. 1 Cranch 137 at 177; 5 US 87 at 111 (1803).

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If [in the course of review], the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modem development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

Thirdly, the doctrine of "Wednesbury unreasonableness "40 is founded on the implied intention of the legislature that a power be exercised reasonably. While the doctrine provides, in one sense, an opportunity for review on the merits, the limitation on the extent of the statutory power is "extremely confined". • Fourthly, in order for the courts to declare and enforce the law, it is necessary to answer the question: what is the law? That question m ust be answered by the courts themselves. In doing so, the role of the courts is not to balance competing interests of the public at large and the interests of individuals, since the courts cannot evaluate the competing policy considerations. Moreover, if the courts could review the merits, the exercise of administrative power might be skewed in favour of the rich, the powerful or the simply litigious. • Finally, if the courts were to review administrative decisions on the ground that they were unfair on the merits, the courts would be doing the very thing entrusted to the repository of the administrative power, namely choosing among courses of action on which reasonable minds might differ. The courts m ust recognise the autonomy of the three branches of government within the limits of their own competence and thus the legal effectiveness of the due exercise of power by the other branches of government. To do otherwise would be to put the legitimacy of the courts at risk. The second point made by Brennan J is particularly important. It embodies one of the pillars of Australian administrative law: courts are not concerned with the merits of administrative decisions, but only with their legality. Brennan J's observations make explicit that the rationale for judicial review of administrative action in Australia is not the protection of individuals against administrative error. The rationale lies, rather, in the vindication of the legality of the administrative decision-making process. It follows that an individual who has legitimate complaints about the quality of an adverse administrative decision is not entitled, by reason of that fact alone, to judicial review of the decision. Generally speaking, an error of fact, for example, even if basic to the decision, is not the concern of the court. Equally, an individual who appears to have no genuine complaint concerning the substance of an adverse decision may succeed in setting it aside if there have been defects in the decision-making process. Indeed, a successful applicant in the court may be someone who appears to have no "merits" at all. •

40

ADJR Act, s 5(2)(g).

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One consequence of this approach is that courts reviewing administrative decisions, if they adhere stringently to the legality-merits dichotomy, will rule even against claimants who appear to be the victims of egregious injustice.41 Another is that apparently undeserving claimants will succeed in the courts, if they can point to deficiencies in the decision-making process recognised as a basis for setting aside the relevant decisions. In few areas of the law are courts not merely unconcerned with substantive injustice, but positively enjoined from taking into account the justice of the result betzveen the parties in an individual case. If the High Court is truly concerned with maintaining public confidence in the judicial process, it is far from clear that this kind of judicial self-restraint serves to achieve the objective which forms the cornerstone of current Chapter III jurisprudence. It should be added that, although both Attorney-General v Quin and Minister for Immigration and Ethnic Affairs v Wu Shan Liang were concerned with judicial review of administrative decisions, the same philosophy of restraint applies to judicial review of executive policy-making. Ordinarily, the issue arises in the context of challenges to subordinate legislation embodying policy determinations by agencies or statutory authorities. While the courts have been prepared to strike down regulations on the grounds of unreasonableness or want of proportionality ,42 these tests are interpreted narrowly. Thus in South Australia v Tanner the High Court emphasised that a court must not “impose its own untutored judgment on the legislator".4^ It is not enough that the court thinks a regulation is inexpedient or misguided: it must be "so lacking in reasonable proportionality as not to be a real exercise of the power". This reflects the principle that subordinate legislation will be declared invalid only if the court concludes that the particular rule or regulation could not have been within the contemplation of Parliament when authorising subordinate legislation .44 The first and fourth points made by Brennan ] in Attorney-General v Quin summarise the effect of the second pillar of Australian administrative law. In Australia, it has been thought to be virtually axiomatic that, because the courts are responsible for declaring the law, they must bear the exclusive responsibility for performing that task. This is the other side of the judicial restraint coin. While executive decision-makers must ascertain the law insofar as it bears on the particular decision to be made, their view as to the meaning of the legislation governing their powers and functions counts for nothing as far as the courts are concerned. It is the judges who determine the meaning of the legislation, uninfluenced by the views of administrative decision­ makers. This is so notwithstanding that the construction of the governing legislation may turn on technical, economic or social considerations that the administrative agencies might have considered at length (or would consider if they had the

41 42 4^ 44

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ (want of logic is not synonymous with error of law); Minister for Immigration and Multicultural Affairs v Epeabaka (1998) 84 FCR 411 (FC) at 420-421. Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 (FC) at 574-578 per Gummow J; P Bayne, "Reasonableness, Proportionality and Delegated Legislation" (1993) 67 ALJ 448. South Australia v Tanner (1989) 166 CLR 161 at 168 per Wilson, Dawson, Toohey and Gaudron JJ. Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd (1993) 40 FCR 381 (FC) at 384 per Lockhart J.

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opportunity). Nor does it matter that the courts may not be as well equipped as the agencies to investigate and make judgments on these issues .45 There is something of a paradox here. Australian courts defer to decision-makers on factual and policy questions, even to the point of upholding obviously erroneous decisions. Yet they pay no attention to an agency's interpretation of the legislation it administers, even if the agency is peculiarly well-placed to analyse the issues. The orthodox answer to the paradox is that each of the twin pillars is a necessary consequence of the nature of judicial power exercised by Chapter III courts. And the nature of judicial power is ultimately determined by what maintains confidence in the judicial process. But is it true that each of the twin pillars is a necessary consequence of the nature of judicial power exercised by Chapter III courts? The experience in the United States suggests that it is not. To that experience I now turn. T H E U N I T E D S T A T E S E X P E R IE N C E

The Supreme Court of the United States has adopted a strikingly different approach to the scope of judicial review of executive action than that accepted by the High Court. Notwithstanding the provenance of Marbury v Madison, the Supreme Court has followed a principle of deference to the executive on questions of statutory construction. Yet by means of the so-called "hard look" doctrine, it has simultaneously been prepared to scrutinise closely what in Australia would plainly be regarded as the "merits" of agency decisions. The situation in the United States is itself paradoxical; but the nature of the paradox is the mirror image of that in Australia. Statutory construction The leading case on the principle of deference to the executive on questions of statutory construction is Chevron USAf Inc v Natural Resources Defense Council, Inc.46 Chevron is regarded as one of the most important Supreme Court cases marking out the relationship between judicial review and administrative decision-making, especially by agencies responsible for formulating and applying regulatory controls in areas such as environmental protection, anti-discrimination, safety in the workplace and consumer protection .47 It has been said, with perhaps a touch of nationalistic hyperbole, that Chevroti may be the most frequently cited case of all time .48 In Chevron, the Court was concerned with the Clean Air Act which required States not meeting federal quality requirements to establish a permit program regulating "new or modified stationary sources of air pollution". The legislation provided only a general definition of the expression "stationary source". In 1981 the Environment Protection Agency (EPA) issued regulations defining a "stationary source" to mean a 45

46 47 48

For example, is a court better equipped than an agency to determine whether a particular bulk iron ore rail track transportation service should be regarded as a "service" as defined by s 44B of the Trade Practices Act 1974 (Cth), so that other iron ore producers are entitled to gain access to it? Cf Hammersley Iron Pty Ltd v National Competition Council [1999] FCA 867. 467 US 837 (1984). See, for example, Cass R Sunstein, "Law and Administration After Chevron" (1990) 90 Colum L Rev 2071 at 2073-2075; S Breyer, above n 22 at 372-373. S G Breyer, R B Stewart, Cass R Sunstein and M L Spitzer, Administrative Law and Regulatory Policy (4th ed 1998) at 256.

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plant, rather than a pollution-emitting device within a plant. The effect was to permit a polluter to add pollution-emitting devices within a plant, so long as there was no increase in aggregate emissions from the plant. The principle governing the EPA's construction of the legislation was expressed by Stevens J (delivering the opinion of the Court) as follows: When a court reviews an agency's construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress. If, however, the court determines Congress has not directly addressed the precise question at issue, the court does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute.49

By positing a rule of deference to agency interpretation where Congress has not directly spoken on the issue, Chevron has been portrayed by some commentators as a kind of "counter-Marbury"50 Other commentators contend that Chevron has been frequently honoured in the breach rather than the observance or that it has merely provided a doctrinal basis for a construction of legislation that would have been adopted in any event .51 It has also been argued that Chevron has been consistently circumvented by the Supreme Court's "hypertextualism"—that is, the use of textualist techniques of construction that permit the attribution of "plain meaning" to statutory language that most observers would characterise as ambiguous or even internally inconsistent .52 Whatever criticisms might be made of the Chevron line of authority, the fact is that the Supreme Court has frequently applied Chevron in order to uphold agency interpretations. Two recent cases illustrate its application, although many others might have been chosen. United States v O'Hagan53 was concerned with s 14(e) of the Securities Exchange Act 1934 (US), which made it unlawful for a person "to engage in any fraudulent... acts or practices in connection with any tender offer". The subsection also empowered the Securities and Exchange Commission (SEC), by rules and regulations "to define, and prescribe means reasonably designed to prevent, such acts and practices as are fraudulent". Acting under this power, the SEC forbade trading on the basis of material, non-public information regardless of whether the trader owed a fiduciary duty to respect the confidentiality of the information. The Eighth Circuit Court of Appeals struck down the rule on the basis that s 14(e) did not authorise the SEC to create its own definition of "fraud". The Court considered that the statutory expression retained a fixed meaning and did not extend to trading unless it involved a breach of trust or confidence.

49 5(1 51 52 53

467 US 837 at 842-843 (1984) (citations omitted). C R Sunstein, above n 47 at 2075. T W Merrill, "Judicial Deference to Executive Precedent" (1992) 101 Yale L] 969 at 980-993. See generally S G Breyer and others, above n 48 at 250-345. R J Pierce Jr, "The Supreme Court's New Hypertextualism: An Invitation to Cacophony and Incoherence in the Administrative State" (1995) 95 Colum L Rev 749 at 752. 138 L Ed (2d) 724 (1997).

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Ginsburg J, for the majority of the Supreme Court, reversed the decision of the Court of Appeals, holding that the SEC's rule making authority gave it "latitude" to prohibit acts not themselves fraudulent if the prohibition was reasonably designed to prevent fraudulent acts .545The SEC's judgment on these questions was owed more than mere deference or weight. According to Chevron, the SEC's assessment was to be given controlling weight unless it was arbitrary, capricious or manifestly contrary to the statute. On this basis the rule was a proper exercise of the SEC's prophylactic power. It will be seen that both Chevron and O'Hagan involved questions as to the validity of subordinate legislation. In immigration and Naturalization Service v Aguirre-Aguirre, the question concerned the correctness of a particular deportation decision made by the Board of Immigration Appeals (BIA). The BIA had to construe the Immigration and Nationality Act which, using language derived from the Convention Relating to the Status of Refugees,56 authorised the Attorney-General to deport an alien if he or she determined that there were serious reasons for considering that the alien had committed a serious non-political crime outside the United States [prior to arrival in the United States].

The BIA decided that a Guatamalan citizen was not immune from deportation despite fearing persecution in that country by reason of his political activities, because he had committed a "serious non-political crime" before his entry into the United States. The BIA rejected a construction of the legislation that would have allowed the alien's criminal conduct to be weighed against the nature of the persecution he would face if returned to Guatemala. The Ninth Circuit Court of Appeals, relying on the analysis contained in the so-called "UN Handbook",57 took a contrary view and set aside the BIA's decision. This is, of course, the kind of statutory construction issue that is addressed by Australian courts on almost a daily basis. Kennedy J, giving the opinion of the Supreme Court, held that the Court of Appeals had failed to accord the required degree of deference to the interpretation adopted by the Attorney-General and the BIA. Chevron was applicable because the AttorneyGeneral was responsible for determining whether the statutory conditions for withholding deportation had been met. Moreover, judicial deference to the Executive was especially appropriate in the immigration context, where officials exercise sensitive functions involving questions of foreign relations. Since the statute was silent with respect to the particular issue of construction and the BIA's determination was based on a fair and permissible reading, it had to stand .58

54 55

Ibid at 754. 143 L Ed (2d) 590 (1999).

56

Art 1(F)(b).

57

United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1979). The Handbook is frequently referred to in Australian decisions, although its value as an aid to construction is generally regarded as limited: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 392 per Mason CJ. It must be said that it is not easy to reconcile INS v Aguirre-Aguirre with the Court's earlier decision in Immigration and Naturalization Service v Cardoza-Fonseca 480 US 421 (1987). There the Court rejected the BIA's construction of the asylum statute which would have required an applicant for asylum to demonstrate the "clear probability" that he or she would face persecution if returned to the country of nationality.

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What, then, is the justification as a matter of principle for courts in the United States deferring to agency interpretations of governing legislation? This question has generated a substantial literature. Sometimes pragmatic answers are given. For example, some commentators suggest that the courts defer because agencies have built up specialist expertise in their particular areas and indeed have often assisted in drafting the legislation .59 A related contention is that agencies are better equipped to make the policy judgments required to resolve ambiguities in the expression of Congressional will .60 In an "influential essay ",6126Justice Scalia of the Supreme Court of the United States rejects these approaches and offers an alternative rationale. In his view, the theoretical justification for the Chevron doctrine is that Congress has determined to leave the resolution of the construction question to the agency itself. Chevron, in effect, creates a presumption that Congress intends ambiguity in the governing legislation to be resolved by the agency. Congress therefore knows that the ambiguities it creates, whether intentionally or unintentionally, will be resolved, within the bounds of permissible interpretation, not by the courts but by a particular agency, whose policy biases will ordinarily be known.6^

Implicit in this analysis is a recognition that the process of statutory construction involves choices among alternatives by reference to policy considerations and that agencies are at least as well-equipped as courts to make the necessary policy judgments. In this sense, the Chevron doctrine represents a triumph for realist jurisprudence. Chevron has no shortage of critics in the United States. None of the critics appears to suggest, however, that courts will lose legitimacy nor that public confidence in the judiciary will be destroyed, if the courts do not retain exclusive responsibility for interpreting legislation. On the contrary, the Chevron doctrine seems to show that deference can be paid to administrators' determinations on questions of statutory construction without abrogating the judicial function or the authority of the legislature. The doctrine is also a clear demonstration that the principle of Marbury v Madison, despite its enthusiastic reception in Australia, does not necessarily require courts to be exclusively responsible for construing statutes which confer decision or rule-making authority on the executive. The "Hard Look" doctrine The counterpoint to the Chevron principle in the United States is the so-called "hard look" doctrine, employed by federal courts in the United States when reviewing agency decisions, especially those involving rule-making functions. The key provision is 59 60 61 62

S Breyer, above n 22 at 368-369 (describing, but not necessarily endorsing, the argument). This article was written when Justice Breyer (now of the Supreme Court) was a Judge of the US Circuit Court of Appeals for the First Circuit. A Scalia, "Judicial Deference to Administrative Interpretations of Law" [1989] Duke L] 511 at 514-516. Justice Scalia rejects this rationale, on the ground that policy evaluation is "part of the traditional judicial tool-kit" (at 515). S G Breyer and others, n 48 above, at 257. A Scalia, above n 60 at 517. Sunstein sees Chevron as resting on the desirability of forcing Congress to speak with clarity if it wishes to avoid administrative interpretation of statutes: Cass R Sunstein, "Must Formalism Be Defended Empirically?" (1999) 66 U Chicago L Rev 636 at 656.

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s 706(2)(A) of the Administrative Procedure Act 1946 (APA) which requires a reviewing court to hold unlawful and set aside agency action, findings, and conclusions found to be (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

This language has provided the springboard for what in Australia would be understood as merits review of agency policy decisions. The "arbitrary and capricious" standard, like Wednesbuiy unreasonableness in Australia, could have been read as justifying judicial intervention only in narrowly defined circumstances. But in a series of decisions, of which the most im portant are Citizens to Preserve Overton Park, Inc v Volpe63 and Motor Vehicle Manufacturers' Association v State Farm Mutual Automobile Association (the so-called "airbags" case ),664 3 the Supreme Court has given its imprimatur to a broad reading of the standard laid down by the APA. In Overton Park, a challenge was made to a decision by the Secretary of Transportation to authorise the use of federal funds to finance the construction of an interstate highway through a public park in Memphis, Tennessee. The relevant statute prevented the Secretary from authorising the expenditure if a "feasible and prudent alternative exists". The Court held that the Secretary's decision was entitled to a presumption of regularity, but that the presumption could not "shield his action from a thorough probing, in-depth review". The reviewing court, in order to uphold the Secretary's decision, had to be able to find that the Secretary could have reasonably believed that there were no feasible alternatives to the proposed construction of the highway. The court's role was to consider whether the decision was based on a consideration of all relevant factors and whether there had been "a clear error of judgment". In the result, the Supreme Court remanded the case to the District Court for plenary review of the Secretary's decision since there was insufficient material before it to enable it to identify the factors that motivated the Secretary's decision. While the Supreme Court has used more restrained and traditional language in other cases,65 the analysis in Overton Park encouraged federal courts in the United States to scrutinise agency policy decisions very carefully. This approach was reinforced by State Farm. In that case, a majority of the Supreme Court held that the National Highway Traffic Safety Administration (NHTSA) had acted arbitrarily and capriciously in revoking a requirement under the Motor Vehicle Safety Act of 1966 that new vehicles be equipped with passive restraints to protect the safety of occupants .66 The requirement had a "complex and convoluted" history over more than a decade, during which it had been imposed, amended, rescinded, reimposed and again rescinded by the NHTSA. The Supreme Court considered that the NHTSA, despite its lengthy consideration of the issue, had failed to present an adequate explanation for rescinding the passive restraint standard. The Court characterised the rescission as unreasonable, for a 63 64 65 66

401 US 402 (1971). 463 US 29 (1983). Compare Baltimore Gas and Electric Co v National Resources Defense Council Inc 462 US 87 at 103 (1983), referring to the need for the reviewing court to defer to factual determinations within an agency's area of expertise. The case was decided by a majority of 5:4.

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num ber of reasons. These included the agency's insufficiently explained rejection of certain studies relating to the usage of seatbelts and its failure to consider alternatives to rescission of the standard. In what might be thought to be an understatem ent, Justice Breyer has described State Farm as exhibiting a "fairly strict judicial attitude towards review of substantive agency policy ".67 As he points out, the Court conducted a thorough and searching review of the agency's action under the "arbitrary and capricious" standard in order to undermine the plausibility of the justification proffered by the NHTSA for its actions .68 The "hard look" doctrine has been said to reflect the concerns of federal courts in the United States that powerful agencies have been "captured" by particular interest groups, frequently the very interests the agency is meant to regulate .69 The courts applying the doctrine have, for the most part, been careful not to substitute their judgm ent for those of the agencies. In that sense they have continued to defer to the agency's ultimate decision-making authority. Even so, in practical terms they have required agencies to develop detailed records that explain the bases for their decisions and to consider carefully the evidence presented to them. It is not surprising that the effective outcome of a successful challenge is often the death of the rule or policy promoted by the agency .70 Critics of the hard look doctrine have emphasised the practical difficulties inherent in a stringent standard of review of substantive agency decisions .71 They have pointed to the limitations of the judicial process for investigating and assessing the vast body of technical and conflicting material gathered by or presented to the relevant agency. They have also criticised the fact that judicial review of the merits of agency decisions creates an incentive for agencies to maintain the status quo. For example, an agency faced with apparently unending demands by courts for more information and more elaborate reasoning may simply abandon its attempts at reform. Alternatively, the spectre of judicial review of substantive policy may divert the agency's scarce resources to satisfying the courts' requirements and away from the regulatory job the agency is meant to perform. Like Chevron, the hard look doctrine has its share of critics. Some of the criticisms focus on the practical difficulties confronting courts when they attempt to review complex policy questions. But the critics do not suggest that merits review of policy decisions will delegitimise the courts or destroy public confidence in them. The calls for change rest on more pragmatic considerations. W H A T IS T O BE L E A R N E D ?

From an Australian perspective, there is a nice irony in the conclusions reached by Justice Breyer in a survey of judicial review of executive action in the United States. Writing in 1988, he detected an "important anomaly" in the law of judicial review of administrative decision-making. He identified the anomaly as follows: 67 68 69 70 71

S Breyer, above n 22 at 384. Ibid at 385-387. S G Breyer and others, above n 48 at 346-347. The highway proposal in Overton Park never went ahead. While, in the aftermath of State Farm, the NHTSA ultimately adopted a passive restraint rule: ibid at 362-363 and 382. S Breyer, above n 22 at 388 ff.

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The law requires courts to defer to agency judgments about matters of law, but it also suggest that courts conduct independent, "in-depth" review of agency judgments about matters of policy. Is this not the exact opposite of a rational system? Would one not expect courts to conduct a stricter review of matters of law, where courts are more expert, but more lenient review of matters of policy, where agencies are more expert?72

Justice Breyer saw the then current state of the law as unstable. He therefore considered that change was likely. One approach was to accord agency decisions greater deference ,73 but this carried with it the danger that agencies would be largely unchecked by the judicial branch. He characterised the problem as one of "tailoring the court's legal obligations...to their institutional capacities and strengths ".74 The solution to the problem he largely left to others. In Australia, as I have pointed out, the anomaly is quite the reverse of that identified by Justice Breyer. Australian courts have insisted on exclusive authority to declare and enforce the law, but have generally deferred almost completely to executive decision-makers on the "merits". There may be good reasons why Australian courts would choose not to embrace fully the Chevron and "hard look" doctrines. But this is not the same thing as saying that the twin pillars of Australian administrative law can never be challenged. It is by no means out of the question that Australian courts will borrow from the United States experience. For example, there have been hints from time to time in Australia that courts might consider deferring to agency interpretation of statutory language that require reference to technical, economic or social considerations. As Peter Bayne has pointed out in one of the few Australian commentaries to have referred to Chevron,75 Dixon J in R v Hickman; Ex parte Fox76 characterised as "unfortunate" the fact that the Court had been left to ascertain as best it could the denotation of the very indefinite expression "coal mining industry ".77 His Honour expressed the view that: From a practical point of view, the application of the Regulations should be determined according to some industrial principle or policy and not according to the legal rules of construction and the analytical reasoning upon which the decision of a court of law must rest.78

More recently there have been tentative indications that the High Court may be prepared to contemplate something less than a unyielding application of Marbury v Madison to judicial review of administrative decisions. Ironically enough, in Minister for Immigration and Ethnic Affairs v Wu Shan Liang itself, the joint judgm ent emphasised that, under the Migration Act, an applicant's status as a refugee depended on the Minister (or his delegate) being satisfied that the applicant met the criteria stated in the Refugees Convention. The Court considered that the subjective nature of the 72 73 74 73 76 77 78

Ibid at 397. For an example of a restrained approach, see the opinion of Posner J in American Dental Association v Martin, 984 F 2d 823 (7th Cir 1993). S Breyer, above n 22 at 398. P Bayne, "Fuzzy Drafting and the Interpretation of Statutes in the Administrative State" (1992) 66 ALJ 523 at 524. (1945) 70 CLR 598. The question concerned the jurisdiction of a Local Reference Board established under the National Security (Coal Mining Industry Employment) Regulations. (1945) 70 CLR 598 at 614-615 per Dixon J.

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administrative decision was relevant in deciding whether the Minister's delegate had or had not applied the correct criteria. In substance, the Court took the view that the delegate's reasons were not lightly to be understood as failing to undertake the degree of speculation required by the definition of "refugee" in the Refugees Convention. The judgm ent did not expressly take up the point made by Dixon ] in Hickman. Nonetheless, it can be read as indirectly acknowledging the desirability of according some latitude to an administrative decision-maker required to apply a statutory standard .79 No Australian case has gone so far as to suggest that the Chevron doctrine should be adopted in this country. But there seems to be no insuperable obstacle to the High Court choosing to adopt the doctrine or some variation of it. As Peter Bayne has observed ,80 there is a well established stream of authority in Australia dealing with the effect of privative clauses which protects an administrative decision, provided it is a bona fide attem pt to exercise the relevant power. The decision must relate to the subject matter of the legislation and must be reasonably capable of reference to the power given to the body .81 This line of authority provides some support for the view that Parliament is able to commit interpretative functions to an administrative agency and that the courts might acquiescence in such an approach. Similarly, it is open to the High Court to move towards closer scrutiny of the merits of decisions made by the executive. The tools are already there. They include Wednesbury unreasonableness and the doctrine of proportionality. All that is required is for a more liberal interpretation of established principles. Indeed, the recent reaffirmation by the High Court of the sanctity of the border between legality and merits review has been prompted by the Federal Court incursion over the border .82 As the United States experience shows, borders can be moved. C O N C L U S IO N

The most significant lesson to be learned from the experience of judicial review of administrative action in the United States is that even the most apparently fundamental principles deserve reappraisal from time to time. It may be that the reappraisal will ultimately serve to affirm those principles and the values underlying them. But that will be because they continue to serve important policy objectives, not because they are immutable.

79 80 81 82

See also Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 at 607609 per Gummow J. P Bayne, above n 75 at 525. R v Hickman; Ex parte Fox (1945) 70 CLR 598 at 614. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577; Guo v Minister for Immigration and Ethnic Affairs (1997) 191 CLR 559. See J McMillan, above n 33.

[6] AMERICAN ADMINISTRATIVE LAW UNDER SIEGE: IS GERMANY A MODEL? Susan Rose-Ackerman* The American regulatory state is under attack. Economists criti­ cize the irrationality of substantive policies . *1 Political scientists attack adm inistrative policymaking and im plem entation as cumbersome, dis­ jointed, and adversarial . 2 Law professors argue that the adm inistra­ tive process is legalistic, time-consuming, and ineffective .3 Com m en­ tators, including some now on the federal bench, argue that judicial scrutiny has induced agencies to make fewer rules and to seek less accountable ways of m aking policy .4 They urge the courts to defer more frequently to agency decisions . 5 The criticisms have built to such a crescendo th at the system seems in crisis. But appearances are deceiving. Although reform is needed, many critics have overstated their case. The most popular reform proposals would destroy much of value in the American system. M odern democracies need to strike a balance between popular control and expertise, at the same time as they restrain the influence of narrow, organized groups. B ureaucratic policymaking is an inevi­ table consequence of the complexity of problems facing the modern state. It cannot be perform ed by the legislature or the judiciary, but it needs to be m onitored both by these formal organs of state power * Henry R. Luce Professor of Jurisprudence (Law and Political Science), Yale University. B.A. 1 9 6 4 , Wellesley College; Ph.D. (economics) 1 9 7 0 , Yale University. 1 For a general critique, see W. K.ip Viscusi, Health and Safety Regulation, in A merican Economic Policy in the 1 9 8 0 s, at 4 5 3 , 5 0 1 - 0 2 (Martin Feldstein ed., 1 9 9 4 ), and, on envi­ ronmental policy, the essays collected in Public Policies for Environmental Protection (Paul R. Portney ed., 1 9 9 0 ). 2 S e e , e.g., John M. Mendeloff, T he D ilemma

How Overregulation Causes U nderregulation

at

of

T oxic Substance Regulation:

OSHA 1 -1 7 (1 9 8 8 ) (arguing that OSHA

regulates too few substances but imposes overly strict standards for those that it does regulate); John Mendeloff. Regulating Safety: An Economic and Political Analysis of Oc­ cupational Safety and H ealth Policy 1 4 5 - 5 0 (1 9 7 9 ) (recommending the use of cost-benefit analyses in setting health and safety standards).

J See, e.g., Jerry Mashaw, Improving the Enviro nme nt of Agency Rulemaking: An Essay on M anagement, Games, and Accountability, 57 Law & CONTEMP. Probs. (forthcoming Winter 1 9 9 4 ) (arguing for an end to preenforcement review); Rosemary O’Leary, The Impact of Federal Court Decisions on the Policies and Administra tio n of the U S. Environ mental Protection Agency, 41 A dmin . L. Rev. 5 4 9 , 5 6 3 - 6 7 (1 9 8 9 ) (arguing that judicial review has led the EPA to devote excessive resources to litigation). 4 See, e.g., Jerry L. Mashaw & David L. Harfst, T he Struggle for Auto Safety passim (1 9 9 0 ) (arguing that judicial review has impelled the NHTSA from rulemaking to product recalls); Antonin Scalia, Back to Basics: Making Law Without Making Rules, Regulation, Julv-Aug. 1 9 8 1 , at 2 5 . 27 (arguing that recent developments, including exacting judicial review, have given agencies reason to reconsider policymaking by adjudication). 5 See, e.g., R. Shep M elnick , R egulation and the Courts: T he C ase of the C lean Air Act passim (1983) (arguing that judges should defer more frequently to the EPA). 1279

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and by ordinary citizens . 6 Although the adm inistrative process must be under bureaucratic control, both judicial review and adm inistrative attention to outside individuals and groups are necessary to ensure democratic legitimacy and competence. My own view of the proper judicial role draws on two recent developm ents in social science. First, social choice theory dem on­ strates the fundam ental difficulties of making consistent policy choices under dem ocratic conditions. It teaches that democracy may produce illogical and inconsistent results . 7 Rational choice models of politics counsel careful m onitoring of the representative system because of the weak incentives for citizens to become informed about political choices. Second, policy analysis recommends the systematic weighing of costs and benefits as a means of improving executive-branch policy­ m aking . 8 M y jo int comm itm ents to expertise and to democracy lead me to conclude th at delegation is justified, but only if adm inistrative pro­ cedures are open and accountable. The rational choice literature sug­ gests th at the legislative process requires monitoring. As a conse­ quence, I have argued elsewhere for a two-fold judicial role in reviewing both the activities of federal regulatory agencies and the actions of C ongress . 9 First, courts should impose a background costbenefit norm when agencies im plement laws that seek to improve the efficiency of the economy . 10 Such a background norm would make it more difficult for Congress to pass laws that favor narrow interests unless Congress clearly states its intention to do so in the text of the statu te . 11 Second, courts should acknowledge w hat has always been obvious to political scientists and W ashington observers — that C on­ gress often takes actions that do not have m ajority support and then disguises w hat it has done. The courts should take some modest steps to im prove the transparency of the legislative process. They should review statutes for harm ony between means and ends, review appro-

6 See Christopher

F. E dley, Jr., Administrative Law: Rethinking Judicial Con­ B ureaucracy 1 3 - 9 5 (1 9 9 0 ) (examining the relationship between politics, law, and expertise and urging reform to promote sound government and more effective judicial review); Susan Rose-Ackerman, Rethinking the Progressive Agenda: T he Reform of the American Regulatory State 3 3 - 4 2 (1 9 9 2 ). 7 See D ennis C. Mueller, Public Choice II, at 2 - 6 (1 9 8 9 ). The classic proof of this result appears in Kenneth J. Arrow, Social Choice and Individual Values 9 - 2 1 (2 d ed. trol of

1 9 6 3 )8 See Rose-Ackerman, supra note 6 , at 1 4 - 1 9 ; E dith Stokey & Richard Zeckhauser, A Primer for Policy A nalysis 1 3 4 - 5 8 (1 9 7 8 ). 9 See Rose-Ackerman , supra note 6, at 33-79. 10 See id. at 3 3 - 4 2 . 11 The D.C. Circuit recently supported the use of such a norm under the Occupational Safety and Health Act, 2 9 U.S.C. § 6 5 2 (8 ) (1 9 8 8 ). See International Union, UAW v. OSHA, 9 3 8 F.2 d 1 3 1 0 , 1 3 1 8 - 2 1 (D.C. Cir. 1 9 9 1 ).

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priations for consistency with statutory purposes, and forbid the in­ clusion of substantive provisions in appropriations acts . 12 The aim of these proposals is to improve the operation of Congress, but they will also ease the job of public adm inistrators by giving bureaucrats a more realistic set of goals to accomplish. Although these suggestions have proved controversial , 13 they do, I believe, respond to fundam ental weaknesses in American public law. In contrast, other proposed reforms, with more salience in the current reform debate, do not. In particular, the alternatives of regulatory negotiation and restricted judicial review are inadequate if one accepts my basic com m itm ent to both the democratic legitimacy of the ad ­ m inistrative process and the need for an expert bureaucracy. To evaluate the current debate over American adm inistrative law, I contrast our system with G erm any’s quite different structure. I use environm ental regulation as an example because achieving a balance between democratic legitimacy and technical knowledge is hardest, and most im portant, in areas — like environm ental policy — in which expertise is essential and the interests of consumers, labor, industry, and local residents are opposed. Germ any and the United States have faced rem arkably similar challenges in the adm inistration of environ­ mental policy. Because the complex nature of environm ental problem s prevents legislators from resolving all issues within the text of statutes, legislatures in both countries have delegated policymaking authority to the executive. Germ any and the United States diverge sharply, however, in the external constraints they impose on high-level bureaucrats. The G er­ man public law system focuses mainly on the protection of individual rights against the state, rather than on the oversight of executive processes. No judicially enforceable statute governs m inisterial poli­ cymaking processes. Germ an adm inistrative law thus has m uch in common with the proposals of two very different groups of American reformers: those who support more consensual processes and those who advocate restricted judicial review. Justice Scalia, for one, would be at home in Germany. Germ any provides a benchm ark for the domestic debate because at first glance its system of adm inistrative law and public policym ak­ ing seems an ideal response to the pathologies of the American system; many of the problems that American commentators find so vexing do not arise in Germany. I will argue, however, that adoption of the Germ an system would be one more illustration of the dangers inherent in getting w hat one says one wants — recall the movie hero who 12 See Rose-Ackerman , supra note 6, at 43-79. 13 See the following reviews: John J. Donohue III, Book Review, 13 J. Pol’y Analysis & Mgmt. 1 9 2 , 1 9 4 - 9 6 (1 9 9 4 ); Daniel A. Farber, Revitalizing Regulation , 91 M ich. L. Rev . 1 2 7 8 , 1 2 9 3 - 9 6 (1 9 9 3 ); John M. Quigley, Book Review, 31 J. Econ. Literature 2 0 0 1 , 2 0 0 1 (1 9 9 3 ).

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wishes for a quiet life in the country surrounded by women and wakes up to find himself transform ed into a n u n . 14

I. R e f o r m P r o p o sa l s

I focus on two contrasting reform proposals for the United States, both of which can be critically examined in light of the German experience. One group of reformers deplores the adversarial quality of the adm inistrative process and urges the adoption of consensus­ building procedures. These critics would limit the role of the courts by reducing the incentives to appeal to them. The second group argues th at judicial review of the adm inistrative process should focus on the preservation of individual rights in the face of state power. These reformers insist that the courts should restrict their own ju ris­ diction. A. Consensual Processes and Environm ental Protection Those who favor negotiated solutions recommend regulatory ne­ gotiation, business-governm ent cooperation, and advisory committee structures. The aim is to streamline and speed up the regulatory process by fostering an atm osphere of trust and cooperation among the affected groups. Greater use of consensual processes has won support from the A dm inistrative Conference and from a variety of reform -m inded observers . 15 Such reforms have recently taken statutory form in the Negotiated Rulem aking Act of 1 9 9 0 , which encourages the use of regulatory negotiation to draft proposed rules . 16 Under the Act, representatives of the affected interests meet with an agency representative and a t­ tem pt to work out a compromise with the help of a “facilitator . ” 17 The A dm inistrative Procedure Act (APA) requires agencies to complete the inform al rulem aking process , 18 and still permits judicial review, but a successful negotiation should limit the range of disputes and save time. The 19 9 0 Act is adm ittedly too new to be evaluated 14 The movie Bedazzled is a modern British retelling of the Faust legend. See Bedazzled (Twentieth Century Fox 1 9 6 8 ). 15 See 1 C.F.R. § 3 0 5 .8 2 -4 , .8 5 -5 ( 1 9 9 3 ) (presenting the proposals of the Administrative Conference of the United States); N egotiated Rulemaking Sourcebook passim (David M. Pritzker & Deborah S. Dalton eds., 1 9 9 0 ); Philip J. Harter, Negotiating Regulations: A Cure f o r M ala is e , 71 Geo. L.J. i , 2 8 - 3 1 , 4 2 - 1 1 8 (1 9 8 2 ). 16 See 5 U.S.C. §§ 5 6 1 - 5 7 0 (Supp. IV 1 9 9 2 ). The Administrative Dispute Resolution Act, id. §§ 5 7 1 - 5 8 3 , authorizes the use of alternative dispute resolution techniques in the implemen­ tation of statutes in particular cases. 17 See id. § 5 6 6 . 18 See 5 U.S.C. § 5 5 3 (1 9 8 8 ).

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confidently. Nevertheless, experience under older laws suggests th at success will require careful issue selection and process design . 19 R egulatory negotiation is not suitable for most environm ental pol­ icy issues, in part because m any environm ental programs are designed to correct m arket failures. A scarce resource, such as air or water, is used as if it were free, causing uncom pensated harm to the population. In principle, the m arket failure could be corrected and the gains redistributed so that everyone would be better off. The existence of net gains m akes the problem appear amenable to a negotiated solution. In practice, this is seldom the case. Several fundam ental problem s stand in the way of negotiation, including the difficulty of finding a m anageable num ber of truly representative participants, sharp dis­ agreements about the distribution of gains and losses, and the need to develop a knowledge base derived from scientific principles . 20 Thus, application of regulatory negotiation to m arket failures in the environm ental field ought to be limited to cases in which these basic difficulties can be resolved. In order to resolve these difficulties, adm inistrative officials m ust be able to do three things. First, they m ust identify those affected by the negotiation, and ensure that all of the affected parties are repre­ sented effectively by organized groups . 21 Diffuse, unorganized inter­ ests — like consumers or those who breathe the air — will be hard to represent , 22 and groups that claim to speak for such individuals will have difficulty proving their claims. These problems of represen­ tation mean that negotiation is not useful for complex environm ental harms th at affect millions of people spread out over large geographic areas . 23 In contrast, alternative dispute resolution techniques may succeed in bringing together people affected by specific governm ent choices th at have determ inate local environm ental effects . 24 A lter­ natively, a two-step process might be used: experts could come to a consensus on technical m atters, and their negotiated consensus could

19 See N egotiated Rulemaking Sourcebook, supra note 1 5 , at 3 2 7 - 4 3 ; Henry H. Perritt,

J. Pol’y Analysis & Mgmt. 4 8 2 , 4 8 4 - 8 5 (1 9 8 6 ). For example, a recent negotiation over rules for disinfectants and disinfection byproducts in drinking water was stymied by the lack of scientific data. The negotiators themselves recommended additional spending on research. See Disinfectant!Byproduct Negotiation Process Leaves Scientific Gaps, A dvi so ry Board Says, 24 Env’t Rep. (BNA) 1 2 0 1 , 1201 (Oct. 2 9 , 1 9 9 3 ). 21 The groups must not be deeply divided within themselves, and they must all be represented by competent and well-informed people. See 5 U.S.C. § 5 6 3 ; Perritt, supra note 1 9 , at 484-85. 22 See Perritt, supra note 1 9 , at 4 8 5 . 23 See Rudolf Steinberg, K ritik von Verhandlungslosungen, insbesondere von mittlerunterstiitzten Entscheidungen, in 1 Konfliktbewaltigung durch Verhandlungen 2 9 5 , 3 0 4 - 0 5 (Wolfgang Hoffmann-Riem & Eberhard Schmidt-Afimann eds., 1 9 9 0 ) (arguing that negotiated solutions are not suitable for rulings that affect large numbers of people). 24 See 5 U.S.C. §§ 5 7 1 - 5 8 3 -

Jr.,

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then serve as a starting point for ordinary notice-and-comment rulem aking . 25 Second, even if the representation problem can be solved, the authorities m ust clarify exactly which decisions the negotiation group is to make and which decisions will be left to the bureaucracy. They m ust also provide the basic fram ew ork of scientific and technical knowledge. The public officials m ust explain how they will reach a decision if the negotiation fails. This is a key strategic step that affects both the probability of a successful result and the acceptability of the outcome. If the decision is to be made by consensus, the different groups will only agree if all of them are better off under that choice than under the fallback position . 26 T hird, the authorities m ust determ ine the ground rules. Regula­ tory negotiation is predicated on reaching a consensus. But consensus can be sought by m any methods. Considerable controversy has cen­ tered around the form of the negotiation. Should government officials participate ?27 Should meetings be open or private ?28 Should a me­ diator or m oderator guide the process ?29 Should the authorities supply experts to evaluate the technical aspects of the problem ?30 If the system of representation is satisfactory, government officials need not attend, and meetings can be private. If it is not, the addition of bureaucrats and the creation of a more open process are unlikely to compensate satisfactorily for this failure. In such cases, the state should either follow normal APA requirem ents or subm it the issue to the legislature for resolution by m ajoritarian processes. In short, regulatory negotiation should have only limited applica­ bility to the environm ental field. It is only appropriate for a certain narrow class of issues, and even for those issues the process m ust be carefully designed if democratic legitimacy is to be preserved and an

25 The problem with such a process is that important options might be eliminated by technocrats and public officials at the first stage, before citizens are given a right to participate in a public hearing. In the German context, see Bernd Holznagel, Mittlerunterstützte Aush and ­ lungsprozesse aus Anlaß abfallrechtlicher Planfestslellungsverfahren, in Wandel der H and ­

R echt 99, 106-13 (Kathrin Becker-Schwarze, Wolfgang Köck, Thomas Kupka & Matthias von Schwanenflügel eds., 1991); and Steinberg, cited above in note 23, at 311. 26 See Perritt, supra note 1 9 , at 4 8 4 . 27 See, e.g., 5 U.S.C. §§ 5 6 5 (b), 5 6 6 (b) (requiring the participation of agency representatives); Perritt, supra note 1 9 , at 4 9 0 (recommending the participation of government officials). 28 See, e.g., Perritt, supra note 1 9 , at 4 8 6 - 8 7 (recommending private meetings). 29 See, e.g., 5 U.S.C. §§ 5 6 3 (b), 5 6 6 (c), 5 6 8 , 5 6 9 (providing for both a convener and a facilitator). 30 See, e.g., Wolfgang Hoffmann-Riem, Verhandlungslösungen und Mittlereinsatz im Bereich der Verwaltung: Eine vergleichende Einfü hrung , in 1 Konfliktbewältigung durch Ver ­ handlungen , supra note 23, at 13, 21-23 (discussing the use of technical experts in regulatory negotiation in the German legal context). lungsformen im öffentlichen

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acceptable outcome reached. As we shall see when we examine the Germ an system, consensual processes are not necessarily desirable. B. Restrictions on Judicial Review Justice Antonin Scalia is the chief American judicial advocate of sharp restrictions on judicial review. According to Justice Scalia, the courts should avoid the political issues th at arise in the oversight of the rulem aking process. He argues th at reviewing courts should give only those who have suffered individual injuries standing to raise issues related to violations of their rights. Agencies, freed from in tru ­ sive court review, would then be able to revam p the adm inistrative process for greater efficiency. Statutory deadlines could be met more frequently, and less agency time would be taken up with defending against court challenges. To clarify Justice Scalia’s position, consider two recent Supreme C ourt opinions that denied standing to organized wildlife groups that sought to challenge government actions. In Lujan v. N ational Wildlife Federation ,31 a wdldlife group chal­ lenged the Federal Bureau of Land M anagem ent’s land classification policy, which had opened up certain lands to mining. In a five-tofour decision, the Court denied the group standing .32 In dicta ,33 Justice Scalia went on to discuss preenforcement review of regula­ tions ,34 which he argued should be a narrow exception to the general rule that: a r e g u la tio n is not o r d in a r ily c o n sid e re d . . . “ r ip e ” fo r ju d i c ia l r e v ie w u n d e r th e A P A u n til the sco p e o f the c o n tr o v e r s y h a s b een re d u c e d to m o re m a n a g e a b le p ro p o rtio n s , a n d its fa c t u a l c o m p o n e n ts flesh e d o u t, b y so m e c o n c re te a c tio n a p p ly in g th e re g u la tio n to th e c la im a n t ’s s itu a tio n in a fa s h io n th a t h a rm s o r th re a te n s to h a rm h im .3S

Justice Scalia thus took the opportunity to criticize attem pts to influ­ ence agency policymaking through the courts. General acceptance of Justice Scalia’s position would make review of high-level policymaking more difficult. It would make challenges mounted by environm ental groups especially problematic because regulations are seldom directed at them. Justice Scalia seems to have gone even further in the second case, although the actual breadth of the C ourt’s holding is in some doubt. Lujan v. Defenders o f W ildlife 36 concerned a wildlife group’s challenge J1 4 9 7 U.S. 8 71 (1 9 9 0 ). 32 See id. at 8 8 5 - 8 9 . 33 See id. at 9 1 3 (Blackmun,

J., dissenting) (arguing that Justice Scalia’s discussion of preenforcement review of regulations is dictum). 34 The seminal case in this area is Abbott Laboratories v. Gardner, 3 8 7 U.S. 136 (1 9 6 7 ). 35 N ational Wildlife F e d ’n, 4 9 7 U.S. at 8 9 1 . 36 112 S. Ct. 2 1 3 0 ( 1 9 9 2 ).

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to a rule that limits the scope of the Endangered Species Act of 1 9 7 3 to actions within the United States and on the high seas. Two mem ­ bers of the group had traveled to Egypt and Sri Lanka and stated th at they intended to return. W riting for the Court, Justice Scalia denied standing .37 N ot content to rest there, Justice Scalia proceeded to deal with the issue of “procedural injury.” The court of appeals had held that the citizen-suit provisions of the Endangered Species Act gave the wildlife group standing to seek court review of executive branch con­ sultation procedures. Justice Scalia rejected this reasoning: T h is is n o t a ca se w h e re p la in t iffs a re s e e k in g to e n fo rc e a p ro c e d u r a l re q u ir e m e n t the d is r e g a r d o f w h ic h c o u ld im p a ir a se p a ra te co n cre te in te re s t o f th e ir s . . . . R a th e r , th e c o u rt h eld th a t the in ju r y - in - fa c t re q u ir e m e n t h a d b ee n s a tis fie d b y c o n g re s s io n a l c o n fe rr a l u p o n all p e rs o n s o f a n a b s t r a c t , s e lf-c o n ta in e d , n o n -in stru m e n ta l “ rig h t” to h a v e th e E x e c u t iv e o b s e r v e the p ro c e d u r e s re q u ir e d b y la w . W e re je c t th is v i e w .38

Justice Scalia recognized that procedural rights have a special status when concrete interests are at stake .39 But his opinion rejected in strong terms the notion that courts may vindicate the public interest 40 — this is the function of Congress and the president. Justice Scalia thus denies that it is legitimate for Congress to use the courts to m onitor the executive. M ost environm ental statutes include provisions for citizen suits ,41 and recognize public interest groups as “citizens.” In the course of criticizing Justice Scalia’s opinion in Defenders of W ildlife, Cass Sunstein argues that the decision held all such citizen suits unconstitu­ tional, because the statutory provisions seldom require the im pairm ent of a “separate concrete interest” of the plaintiff .42 Professor Sunstein goes too far when he elevates Justice Scalia’s strong language to the status of constitutional law, but he has raised the possibility that

37 See id. at 2 1 3 7 - 4 0 . 38 Id. at 2 1 4 2 - 4 3 . 39 In such 2 1 4 2 n.7 .

cases, requirements of redressability and immediacy can be waived.

See id.

at

40 See id. at 2 1 4 5 . 41 See Federal Water Pollution Control Act § 5 0 5 , 3 3 U.S.C. § 1365 (1 9 8 8 ); Oil Pollution

Act § 1 0 1 7 , 3 3 U.S.C. § 2 7 1 7 (Supp. II 1 9 9 0 ); Resource Conservation and Recovery Act § 7 0 0 2 , U.S.C. § 6 9 7 2 (1 9 8 8 ); Clean Air Act § 7 0 7 , 42 U.S.C. § 7 6 0 4 (1 9 8 8 & Supp. II 1 9 9 0 ); Comprehensive Environmental Response, Compensation, and Liability Act § 1 1 3 , 42 U.S.C. § 9 6 5 9 (1 9 8 8 ). The one exception is the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. §§ 1 3 6 - 1 3 6 V (1 9 8 8 ). 42 See Cass R. Sunstein, What's Stan ding After Lujan? O f Citizen Suits, “Injuries,” and Article I I I , 91 M ich . L. Rev . 1 6 3 , 2 0 0 - 0 2 (1 9 9 2 ). 42

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Justice Scalia’s musings could gain constitutional status in some future case .43 Justice Scalia’s position ignores the value of the basic principles of informal rulem aking and judicial review under the APA. He seeks to rule out just the sort of judicial review that the courts are best able to perform w ithout taking on a policymaking role .44 U nder the APA the ultim ate policymaking decision is in the hands of the bureaucracy, but adm inistrative discretion is constrained by the need for public notice, a hearing, and a statem ent of reasons . 45 Thus, the process is open to opinions and information from outside groups, but it is not under the control of these groups. Such bureaucrat-led processes are generally appropriate in the environm ental area, because of the prob­ lems of representation. Bureaucratic discretion is subject to judicial review both of procedure and of substance under an “arbitrary and capricious” stan d ard .46 Although statutory and judicial overlays may have unduly elaborated the APA provisions, the basic structure should not be abandoned. To follow Justice Scalia’s line would be to overlook the im portant role courts have to play in ensuring the democratic legitimacy of bureaucratic procedures under the American separationof-powers doctrine. II.

T

he

G

erm an

D

is a d v a n t a g e

in

A

d m in is t r a t iv e

P r o c e d u r e 47

So far I have argued that neither advocates of regulatory negoti­ ation nor supporters of reduced judicial oversight have offered ac­ ceptable solutions to the problems of the American regulatory state. A study of the German system confirms the inadequacy of these

4* Contrary to Sunstein’s view, Justice Scalia’s opinion did not clearly delineate the limits of congressional authority to include citizen suit provisions in legislation. Commenting on this issue, Justice Kennedy, joined by Justice Souter, stated that “Congress has the power to define injuries and articulate chains of causation that will give rise to a case or controversy where none existed before, and I do not read the Court’s opinion to suggest a contrary view.” Defenders of Wildlife . 112 S. Ct. at 2146-47 (Kennedy, J., concurring in part and concurring in the judgment). Presumably, if Justices Kennedy and Souter had read Justice Scalia’s language to express this “contrary view,” they would not have concurred in his opinion. Furthermore, Justice Stevens, who concurred only in the judgment, took a broad view of citizen and group standing. See id. at 2147 (Stevens, J., concurring in the judgment). If these three Justices are combined with the two dissenters, Justices Blackmun and O’Connor, it appears that five mem­ bers of the Court take a permissive view of Congress’s ability to define the injuries that can create standing. 44 See id. at 2158 (Blackmun, J., dissenting) (criticizing the opinion’s “anachronistically formal view of the separation of powers”). 45 5 U.S.C. § 553 46 See id. § 706. 47 With apologies to John H. Langbein. See John H. Langbein, The German Advantage in Civil Proc ed ure , 52 U. C h i . L. Rev . 823 (1985).

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proposed reforms. G erm any’s environm ental policymaking processes and its restricted system of judicial review fail to provide democratic legitimacy — at least as that phrase is understood in American dem ­ ocratic theory. A. Legislative and Constitutional Structure The centrality of party politics in the German political system has profound im plications for the process of environmental policymaking. Although G erm any’s system of proportional representation facilitated the creation of a Green party , 48 it may also have discouraged other, extra-parliam entary forms of policy activism. According to Germ an views of democracy, individuals who oppose the policies of the gov­ erning coalition should focus on changing the government through electoral, party politics, rather than by influencing day-to-day poli­ cym aking .49 In addition, because the same party coalition controls both the legislative and executive branches, formal legal constraints on bureaucratic policymaking should be unnecessary. The Germ an reality — at least in the area of environm ental policy — is not nearly so well ordered as the theory suggests. German statutes are not precise statem ents of policy, but are full of vague and undefined terms th at require further interpretation before the acts can be implemented. Because of the complex technical nature of environ­ m ental issues and because of the difficult tradeoffs faced by those seeking to control pollution, the Bundestag has been no more suc­ cessful at giving clear direction to the executive than the United States Congress has been. The Germ an approach differs from the American, however, be­ cause G erm any’s constitution, the Grundgesetz ,50 explicitly limits the regulatory activity of the executive. Before a regulation can be issued, the Grundgesetz requires the Bundestag to delegate regulatory author­ ity by specifying the “content, purpose, and scope” of the authorization in the statutory language .51 In addition, the substantive, judge-m ade principle of “proportionality” constrains both legislative and executive 48 The Green Party has been in the Bundestag since 1983 and is part of the coalition government in several Länder. See Edda Müller, Sozial-liberale Umweltpolitik: Von der Karriere eines neuen Politikbereichs , D as Parlament (Supp., Aus Politik und Zeitgeschichte), Nov. 1 7 , 1989, at 3, 11.

49 See Peter J. Katzenstein , Policy and Politics in W est G ermany 44 (1987) (arguing that German political parties are “an essential institutional node linking state and society"). 50 The foundational document promulgated in 1949 was called a Basic Law {Grundgesetz)

rather than a constitution to emphasize the provisional character of the divided German state. In this Article, however, I will use the terms “Grundgesetz" and “constitution” interchangeably. 51 See G rundgesetz [GG] art. 80(1); see also T heodor Maunz, Günter D ürig , Roman H erzog, R upert Scholz, H ans-J ürgen Papier , Albrecht Randelzhofer & E berhard Schmidt -Assmann , 3 G rundgesetz : Kommentar , art. 80, at 5 (1993) (explaining the consti­ tutional mandate of delegation of regulatory authority).

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policymaking. This principle has four p arts :52 first, the aim of the law must be legitimate; second, the means m ust be in proportion to the ends; third, the means m ust be an effective way of reaching the ends; and fourth, the means m ust intrude as little as possible upon individual rights. Both the delegation doctrine and the proportionality principle could, in theory, impose strong checks on legislative drafts­ men and executive-branch policymaking, but in practice they impose only modest constraints .53 Another im portant constraint on federal regulatory activity in G er­ m any is the constitutional requirem ent that the upper house of the legislature, the B undesrat, approve all regulations and guidelines th at the states will adm inister . 54 Because G erm any’s federal system dele­ gates most im plem entation to the states ,55 the Bundesrat enjoys veto power over a wide range of executive branch activity, including all m ajor environm ental initiatives. As state government officials, Bundesrat members are, however, generally more concerned with the ease of im plementation than with the m erit of the substantive policies .56 B. The Adm inistrative Process Germ an law places few limitations on governmental rulem aking procedures. Constitutional doctrines do not regulate high-level ad­ m inistrative processes. Once the Constitutional C ourt accepts the constitutionality of a substantive government action, it inquires no further into the procedural details. Statutory law has not filled this gap. The G erm an A dm inistrative Procedure Act governs the behavior of public agencies only when they implement general policies in p ar­ ticular cases .57 It does not apply to the formulation of legal regula­ tions and adm inistrative guidelines. Unlike the American rulem aking process, German law imposes few procedural constraints on the activities of the Environm ental Ministry. Officials are free to assign aspects of their tasks to outside 52 The principle is said by the courts and commentators to derive from the fundamental rights protected by the Grundgesetz. See T heodor Maunz & Reinhold Zippelius, D eutsches Staatsrecht 95 (2 8 th ed. 1 9 9 1 ); Jürgen Schwarze, European A dministrative Law 6 8 8 (1 9 9 2 ). SJ See Susan Rose-Ackerman, Controlling Environmental Policy: T he Limits of Public Law in Germany and the U nited States ch. 6 (forthcoming 1 9 9 4 ) (arguing that, in practice, German courts do not strictly apply the proportionality principle in complex technical matters). 54 See GG arts. 8 0 (2 ), 8 4 (2 ), 8 5 (2 ). The Bundesrat is composed of members of state govern­ ments, with votes apportioned roughly by population. See GG arts. 5 0 - 5 3 . 55 See GG arts. 8 3 - 8 5 ; Katzenstein, supra note 4 9 , at 2 0 . 56 See Rose-Ackerman, supra note 5 3 , ch. 5 . 57 See Verwaltungsverfahrensgesetz [VwVfG] § 3 5 , 1 9 7 6 Bundesgesetzblatt [BGBl.] I 1 2 5 3 , 1263.

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groups, state-federal working groups, or advisory bodies. Typically, the m inistry seeks advice from such groups before instituting more formal procedures. The process lacks adequate procedural safeguards, and in a few cases even the usual formalities can be avoided .58 1. Consensual Processes. — In practice, the German government delegates certain technical decisions to private groups and routinely consults with federal advisory committees of experts and interest group representatives in the course of setting environmental standards. These consensual practices, derived from labor-managem ent relations and industrial self-regulation , 59 are often poorly adapted to environ­ mental issues 60 and dem onstrate the risks of an uncritical endorsem ent of regulation through negotiation. (a) Private N orm-setting Organizations. — Private norm-setting organizations have long played a key role in the self-regulation of economic activity outside the environm ental arena .61 Their original role as standard-setters for industry now extends into the environ­ mental field .62 The most im portant norm-setting organizations are the Germ an Institute for Norm s (Deutsches Institut fu r Norm ung, D IN )63

58 See infra p. 1 3 0 0 . 59 See Katzenstein , supra note 49, at 58-64; see also T he R egulation Game: H ow B ritish and W est G erman Companies Bargain with Government 152-54 (Alan Peacock ed., 1984) (demonstrating that the German administrative system encourages negotiation between firms and regulators). 60 See Rose-Ackerman , supra note 53, ch. 8 (discussing the difficulties that arose when

Germany experimented with regulatory negotiation in environmental cases). For general works on the role of negotiation in German environmental law, see 1 Konfliktbewältigung durch V erhandlungen , cited above in note 23, at 217-335; and B ernd H olznagel, Konfliktlö ­ sung durch

Verhandlungen 177-302 (1990).

61

There are 1 7 0 such bodies in Germany. See Klaus Grefen, Harmonization of Technical Rules for Clean Air in View of the European Internal Market 3 (Nov. 1 9 9 1 ) (unpublished manuscript, on file with the Harvard Law School Library). The legal status of the norms that these groups set is a controversial issue in German law. See Gert Brüggemeier & Josef Falke, Product Safety Policy in the Federal Republic of Germany , in European Product Safety , I nternal Market Policy and the N ew Approach to T echnical Harmonisation and Standards i , 8 - 1 2 (Christian Joerges ed., 1 9 9 1 ); Peter Marburger, Die gleitende Verweisung aus der Sicht der Wissenschaft , in Verweisung auf technische N ormen in Rechtsvor­ schriften : Symposium 2 7 , 3 9 (Deutsches Institut für Normung ed., 1 9 8 2 ). 62 See E rhard D enninger , Verfassungsrechtliche A nforderungen an die N orm­ setzung im U mwelt- und T echnikrecht 13 (1 9 9 0 ) (describing the principle of “cooperation”

between governmental organs and non-governmental organizations in the area of environmental protection); Martin Führ, Technische Normen in demokratischer Gesellschaft , 4 Zeitschrift FÜR U mweltrecht 9 9 , 9 9 ( 1 9 9 3 ); Irene Lamb, Die Bedeutung technischer Normen im U m ­ w el tr echt , 4 Zeitschrift für U mweltrecht 9 7 , 9 9 (1 9 9 3 ); Gertrude Lübbe-VVolff, Verfas­ sungsrechtliche Fragen der Normsetzung und Normkonkretisierung im Umwel trecht , 6 Zeit­ schrift für Gesetzgebung 2 1 9 , 221 (1 9 9 1 ). 63 See Brüggemeier & Falke, supra note 6 1 , at 5 0 - 7 4 ; Führ, supra note 6 2 , at 10 1 - 0 2 ; Lamb, supra note 6 2 , at 9 7 . As of 1 9 9 0 , the DIN had 2 0 ,9 8 8 standards on its books. Almost 4 0 0 0 working groups of the DIN exist to set standards in a variety of fields. See Grefen, supra note 6 1 , at 1 5 , tbl. 3 . The DIN contract with the federal government, which dates from 1 9 7 5 ,

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and the Association of German Engineers (Verein Deutscher Ingenieure, VDI ).64 The D IN has a committee for nuclear engineering, and in 19 9 0 the D IN and the VDI established a Commission on Air Pollution Prevention with financial support from the federal govern­ m ent . 65 In addition to the self-regulation these organizations support, the E nvironm ental M inistry has sometimes used their standards as guides to the im plem entation of statutes in the environm ental area. The use of norms generated by private technical groups can intro­ duce systematic bias into the policymaking process. Consider the VD I-D IN Commission on Air Pollution Prevention. Although there are some representatives of governm ent on the Commission, m em ber­ ship is heavily weighted tow ard experts employed by industry, and environm ental groups are not represented at all .66 In addition, al­ though committee members are “volunteers,” the m em bers’ employers, rather than the individuals themselves, bear the cost of participation. As a consequence, m any critics have charged that industrial interests are overrepresented . 67 After prelim inary proposals have been formulated in private com­ mittee meetings, they are made available to the public, including environm ental groups, for comment. The committee formulates a final recom m endation, which may incorporate these com m ents .68 E n ­ vironm ental groups, however, often lack the necessary financial and technical resources to provide effective review within the time con­ straints of the public comment process .69 Because the committees do not have the relevant expertise and do not adequately represent all the affected interests, and because the excluded interests cannot provide effective review, the influence of private norm -setting organizations is troubling . 70 The problem is

requires the DIN to take the public interest into account when setting standards. See Christoph Gusy, Wertungen und, Interessen in der technischen Normung, 6 Umwelt - und P lanungs­ recht

241, 245 (1986).

64 2.

The VDI, founded in 1 8 5 6 , has 1 1 0 ,0 0 0 individual members. See Grefen, supra note 6 1 , at Also important are the Verband Deutscher Elektrotechniker (VDE) and the Deutscher Verein des Gas- und Wasserfaches (DVGW). See D enninger , supra note 6 2 , at 7 8 . 65 See Kommission R einhaltung der L uft im VDI und DIN, Aufbau , Aufgaben , E rgebnisse 1-7 (1991); Grefen, supra note 61, at 3. 66 In contrast, DIN consumer product standard committees have included representatives of consumer groups since 1 9 7 4 . See Brüggemeier & Falke, supra note 6 1 , at 6 8 - 7 2 . 67 See Heiko Wagener, Der Anspruch auf Immissionsschutz: Plädoyer für ein einklagbares Recht, 2 N atur und Recht 7 1 , 7 4 (1 9 8 8 ) (noting that the VDI-DIN Commission on Air Pollution Prevention is biased in favor of industry). 68 See Führ, supra note 6 2 , at 1 0 1 ; Gusy, supra note 6 3 , at 2 4 6 ; Lübbe-Wolff, supra note 6 2 , at 2 2 9 . 69 See Führ, supra note 6 2 , at 1 0 1 . 70 Several German administrative law scholars have urged both reduced reliance on the recommendations of private groups and increased transparency in the standard-setting processes used by these groups. See Fritz Ossenbühl, Informelles Hoheitshandeln im Gesundheils- und

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broader than the possible biases introduced by the m em bers’ institu­ tional affiliations. The V D I-DIN Commission’s members are prim ar­ ily engineers and natural scientists, with only a sm attering of social scientists. Indeed, economists are in a residual, five-percent category along with “lawyers, . . . art historians, and other disciplines . ” 71 Even highly com petent scientists and engineers are unlikely to be sensitive to the broader social implications of their recommendations. Because environm ental problems cannot be neatly divided into technical and political segments, judgm ents will necessarily involve a balancing of costs and benefits . 72 Engineers do not necessarily make good policy analysts. Engineers’ resolutions of mixed issues of technology and policy tend tow ard “standard-setting” rather than toward a more nuanced view of the link between means and ends. This is not to say, of course, th at the United States has found just the right m ixture of engineering and social science. It has not. Am er­ ican policy is frequently criticized for favoring technical fixes over perform ance standards or tradable rights. The United States and Germ any face sim ilar substantive failures of policy . 73 However, the fact th at engineering and technical groups play a smaller role in the American adm inistrative process suggests that new policy-oriented ideas from the social sciences may gain acceptance more easily in the United States. The Germ an model of consensual development of technical standards, by contrast, overemphasizes engineering solutions and limits public access to the process . 74 Even if the private norm ­ setting groups included a broader range of experts, they would still face the lim itations of any technical body called upon to make policy judgm ents. (b) Advisory Com m ittees. — Although German private standard­ setting organizations frequently recommend technical standards, these groups have no formal decisionmaking authority. The m inistry or the cabinet holds ultim ate responsibility for legal regulations and guide­ lines, subject to Bundesrat approval. To provide further outside as-

Umweltschutz, 3 J ahrbuch des Umwelt - und T echnikrechts 27, 47 (1987); see also D en supra note 62, at 195 (arguing that the constitutional “Democracy Principle” forbids too much delegation of standard-setting power to non-governmental organizations); Liibbe-Wolff, supra note 62, at 248 (advocating greater openness and transparency in environmental norm­ setting). 71 [Commission R einhaltung der L uft im VDI und DIN, supra note 65, at 2, tbl. 1. 72 Policy an aly sis is not a w ell-developed field in G erm any. For instance, the U m w eltbundesamt, the technical advisory body to the Environmental Ministry, consists largely of scientists and engineers. Of the 417 professionals employed by the Umweltbundesamt in 1991, only 15 had a degree in economics, and 18 in political science or psychology. See U mweltbundesamt , Annual Report 1991: E nglish Summary 6 (1992). 73 For an overview of the weaknesses in the German and American systems, see RoseAckerman , cited above in note 53, ch. 3. 74 For an effort by the Administrative Conference of the United States to grapple with these issues, see 1 C.F.R. § 305.78-4 (1993). n inger ,

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sistance — political as well as technical — several statutes require that the ministry seek advice from advisory committees that include representatives of industry, labor, science and, occasionally, environ­ mental or consumer groups. The composition of the committee may be specified by law, but the ministry selects the individual members. Consider, for example, the regulation of nuclear power in Ger­ many. There are three main governmental advisory committees, all of which are dominated by the power industry or by scientists with a commitment to nuclear power. 75 The Nuclear Technology Com­ mittee (Kerntechnischer Ausschuß), for example, fails to ensure broad representation of interests. 76 Of the Committee’s fifty members, ten represent producers and builders of nuclear equipment and plants, ten represent power companies, ten represent state and federal regulatory agencies, ten represent expert bodies, and the remaining ten represent a diverse collection of groups. The committee votes using a five-sixths rule, so that any of the five groups can block any action. All of the advisory committees are subject to the same criticisms as the DIN and the VDI. The committees seem to be too much under the sway of the regulated industry and of the scientists whose liveli­ hood depends on the industry’s continued viability. 77 American ob­ servers who praise the cooperative regulatory environment in Germany78 need to acknowledge that such advisory bodies frequently have an unrepresentative character. Defenders of the German system take a broader view of the polit­ ical landscape. Ronald Czada, a student of German nuclear-power regulation, argues, for instance, that the system maintains a reason­ able balance between industry and the public interest. 79 Although the advisory committees are dominated by industry, and day-to-day im­ plementation is carried out by self-regulatory bodies, he argues that the industry as a whole is concerned with safety because it fears anti­ nuclear political action. He claims that German producers of nuclear power will try to avoid a major accident because of the severe political repercussions that would follow.

75 See Roland Czada, Konßiktbewältigung und politische Reform in vernetzten Entschei­ dungsstrukturen: Das Beispiel der kemlechnischen Sicherheitsregulierung, in V erhandlungs ­ demokratie , I nteressenvermittlung , R egierbarkeit 7 3 , 7 8 - 7 9 (Roland Czada & Manfred G. Schmidt eds., 1 9 9 3 ); Rudolf Steinberg, Untergesetzliche Regelwerke und Gremien, in Reform des Atomrechts (Rudolf Steinberg ed., forthcoming 1 9 9 4 ) (manuscript at 1 7 , on file with the Harvard Law School Library). 76 See Ossenbühl, supra note 7 0 , at 4 1 - 4 2 ; Steinberg, supra note 7 5 , at 12 & n.4 3 . 77 See Führ, supra note 6 2 , at 1 0 1 ; see also Steinberg, supra note 7 5 , at 17 (arguing that the technical standards set by advisory committees essentially determine the content of laws and regulations). 78 See, e.g ., Richard B. Stewart, Environmental Regulation and International Competitive­ ness, 102 Yale L.J. 2 0 3 9 , 2 0 8 3 (1 9 9 3 ) (arguing that other developed countries, including Germany, have more flexible and cooperative systems of environmental regulation). 79 See Czada, supra note 7 5 , at 7 9 - 8 1 .

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This sanguine view of the current situation raises an important question: are the concerns of environmentalists best incorporated into the regulatory process by giving such groups direct access to decision­ making institutions or by letting their political protests act as a back­ ground constraint? The German public law tradition takes the view that outside protest, rather than inside participation, is the better course. I claim that direct access — more typical of the American policymaking process — is ultimately more conducive to good policy and is more democratically legitimate. American environmentalists cannot content themselves with being gadflies, but need to become well-informed, technically sophisticated participants in the environ­ mental policymaking process. Mobilization is not sufficient. Influence comes primarily, not from being a nuisance, but from rational argu­ mentation and from having an informed constituency. 2. Public Participation and Information. — Using the output of the private norm-setting groups, advisory committees, and state-fed­ eral working groups, the German Environmental Ministry proposes draft regulations and guidelines to the cabinet. This process is infor­ mal, private, consensual, and unreviewable. Ministry proceedings need not be accompanied by public notice, public hearings, or a statement of reasons. There is no judicial review of the adequacy of representation, and the public has no general right of access either to executive branch officials or to the information that they possess. 80 Members of the public have a legal right to obtain information held by the government only if they can demonstrate a suspected violation of their individual rights in the context of an administrative proceeding. 81 A European Community directive, however, requires member states to pass laws that permit access to environmental in­ formation without a demonstration that anyone’s rights have been violated. 82 Although draft laws under this directive have been pro­ posed in Germany, controversy over the breadth of the term “envi­ ronmental information” has meant that no statute has yet passed. 83 Moreover, although environmental groups do participate in certain lower-level planning and licensing processes, the government is under no legal obligation to consult with them . 84 An internal government 80 See Rose-Ackerman, supra note 53, ch. 5. 81 The statute guarantees access, first, only to files that are defined as part of an “adminis­ trative process,” see VwVfG § 9 , 1 9 7 6 BGBl. I 1 2 5 3 , 1 2 5 7 , and second, only to those who have a personal legal interest in obtaining access to the files, see VwVfG § 2 9 , 1 9 7 6 BGBl. I 1 2 5 3 , 1261. 82 See Council Directive 9 0 / 3 1 3 of 7 June 1 9 9 0 on the Freedom of Access to Information on the Environment, art. 3 , 1 9 9 0 O.J. (L 1 5 8 ) 5 6 , 5 7 . 83 See Rose-Ackerman, supra note 53, ch. 9. 84 See Ulrich Linse, Dieter Rucht, Winfried Kretschmer & Reinhard Falter, Von der Bitt­ schrift zur Platzbesetzung: Ein Vergleich, in Von der Bittschrift zur Platzbesetzung : Konflikte um technische G rossprojekte 2 3 1 - 4 3 (Ulrich Linse, Reinhard Falter, Dieter

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ordinance states that ministries should consult with interested groups, but provides no enforcement mechanism. 85 Some statutes specify the interests that should be consulted when rules and guidelines are pro­ mulgated, but environmental organizations and public interest groups are seldom included in these lists. 86 Because compliance with these provisions is not subject to judicial review, the statutory language is, in any event, little more than a recommendation. 87 Of course, political imperatives will frequently make broad-based consultation expedient, and environmental groups are often asked to present their views. Even under reformed procedures, however, the influence of environmental interests in Germany would be more lim­ ited than it is in the United States. Private environmental groups are numerous, but few have the technical capacity to mount a serious challenge to the conventional policymaking and standard-setting pro­ cess. 88 Strong private groups would be unnecessary if political parties such as the Greens could provide a viable substitute; but under mod-

Rucht & W'infried Kretschmer eds., 1 9 8 8 ); Rose-Ackerman , supra note 5 3 , ch. 7 . The only explicit provision for participation of organized groups is in the Nature Protection Law, which permits a limited number of state-designated groups to participate in some state and local planning processes. See Naturschutzgesetz [NatSchG] § 2 9 , 19 87 BGBl. I 8 8 9 , 9 0 2 - 0 3 . 85 The ordinances that govern the federal ministries require that they inform national orga­ nizations representing concerned interests and consult with them before a rule or guideline is issued. The plans of ministries need not be public documents, and persons consulted can be required to keep them confidential. See Gemeinsame Geschäftsordnung der Bundesministerien [GGOJ II §§ 2 4 , 6 7 , 7 8 . If independent experts testify, the Ministry selects them, and their testimony is not generally made public. See GGO I § 6 1 (3 ). These ordinances are only internal administrative rules and have no legal force. See M aunz, DCrig , H erzog, Scholz, Pa pier , Randelzhofer & Schmidt -Assmann , supra note 5 1 , art. 8 0 , at 2 2 ; Fritz Ossenbühl, Rechts­ verordnung, in 3 H andbuch des Staatsrechts der B undesrepublik D eutschland 3 8 7 , 3 8 9 , 4 1 6 - 1 7 (Josef Isenee & Paul Kirchhof eds., 1 9 8 8 ); see also id. at 4 1 4 (providing examples of statutes that require the participation of incorporated groups, organizations, or individual experts). 86 Some statutes, such as the Federal Water Act, impose no constraints. See Wasserhaus­ haltsgesetz [WHG| § 7 a, 1 9 8 6 BGBl. I 1 5 2 9 , 1 5 3 1 ; Lübbe-Wolff, supra note 6 2 , at 2 2 8 . The Air and Noise Pollution Act states that the ministry “shall hear” representatives of those directly affected as well as representatives of the scientific community, the trade, industry and traffic sectors, and the responsible Land authorities. Environmental organizations are not included in the list of “parties concerned.” See Bundesimmissionsschutzgesetz [BImSchG] § 5 1 , 1 9 7 4 BGBl. I 7 2 1 , 7 3 3 . Compare Abfallgesetz [AbfG] § 1 6 , 1 9 8 6 BGBl. I 1 4 1 0 , 1 4 1 8 (requiring, like the Air and Noise Pollution Act, that the ministry consult with affected parties before issuing regulations) with Chemikaliengesetz [ChemG] § 17 (1 ), (7 ), 1 9 8 0 BGBl. I 1 7 1 8 , 1 7 2 4 , amended by 1 9 9 0 BGBl. I 5 2 1 , 5 3 0 (including several types of public interest groups in the list of parties with whom the ministry must consult). 87 See Maunz, D ürig , H erzog, Scholz, Papier , Randelzhofer & Schmidt -Assmann , supra note 5 1 , art. 8 0 , at 2 2 ; Ossenbühl, supra note 8 5 , at 4 1 6 - 1 7 . 88 Most environmental groups are poorly staffed and funded. See Dieter Rucht, Von der Bewegung zur Institution? Organisationsstrukturen der Ökologiebewegung, in N eue soziale B ewegungen in der Bundesrepublik D eutschland 3 3 4 , 3 5 4 - 5 6 (Roland Roth & Dieter

Rucht eds., 2 d ed. 1 9 9 1 ).

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ern conditions, in which much policy is made in administrative pro­ ceedings, rather than in the legislature, partisan political activity pro­ vides an insufficient review of policymaking. 89 j . Lessons for America. — The German experience with consensual procedures counsels caution. Advisory committees, federal-state working groups, and quasi-private committees of technical experts all influence German technical standards and public policies. The system is thus accountable to the scientific community, to business, and to lower-level governments. It is only indirectly accountable to the pub­ lic and to the environmental community, through the cabinet’s re­ sponsibility to the parliament and through the voluntary efforts of the ministry and its advisers. Although some American critics might find the resulting process close to ideal, it is ill-suited to the nature of many of the problems facing the administrative state. German consensual processes fail to measure up to American no­ tions of political accountability and thus are not a legitimate policy choice for the United States. Even the admission of environmental groups or citizens’ organizations in an attempt to make the negotiating bodies more representative would not solve the problem. Although private groups can be an important source of information about both technical and political matters, they cannot make strong claims to represent the general public in regulatory negotiations. Environmental organizations should, of course, be heard by the bureaucracy in con­ ventional rulemaking procedures. In the United States such groups also have the expertise and organizational capacity to challenge faulty rulemaking procedures in court. These legitimate and important roles do not, however, imply that these groups can speak for the public in regulatory negotiations. Once one admits this shortcoming, it becomes clear that even consensual decisions that involve these groups lack legitimacy. No amount of tinkering with the proceedings will over­ come the fundamental mismatch between the consensual approach and the policy problem. Regulatory negotiation is not a good way to ensure the accountability of those making far-ranging environmental policy choices. The German experience supports my conclusion that consensual decisionmaking can produce legitimate decisions only in a narrow range of environmental issues. C. Judicial Review According to German democratic theory, political actors do an adequate job of monitoring bureaucratic policymaking activities. 89 Green activists can, however, point to their role in helping to generate popular support for a tough 198 3 regulation that has reduced sulphur dioxide emissions. See Verordnung uber GroiJfeuerungsanlagen, Bundesimmissionsschutzverordnung [BImSchV] No. 1 3 , 1 9 8 3 BGB1. I 7 1 9 . But see Sonja Boehmer-Christiansen, Anglo-German Contrasts in Environmental PolicyMaking and Their Impacts in the Case of Acid Rain Abatement, 4 I nt ’l E nvtl . A f f . 2 9 5 , 304 (1 9 9 2 ) (calling the Greens’ “success” into question).

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Thus, preenforcement review of federal administrative rules or guide­ lines is not available. 90 The judiciary’s task is, instead, to prevent the state from riding roughshod over individuals as the state pursues broad public goals. 91 The German administrative courts devote most of their time to protecting individual rights, rather than to monitoring the political and policymaking activities of government. 92 Rules of standing and private rights of action exemplify the Ger­ man understanding of democracy. Conventional public law does not permit outsiders to challenge executive branch policies in the admin­ istrative courts unless an individual’s “subjective rights” have been violated. 93 The same reasoning that justifies denying individuals and groups the right to participate in the formulation of general regulations and legal guidelines94 also justifies excluding them from making direct legal challenges to these instruments in court. 95 Germany also lacks the range of private rights of action found in American law. German citizens can defend their individual rights but cannot act as private attorneys general to help enforce the law. 1. Review of Environmental Issues. — Despite the restrictions on standing and the narrow range of issues subject to judicial review, environmental organizations and individual citizens have used the German courts to raise important issues of public policy, particularly in the nuclear power area. After mounting several mass protests to

90 See Eckard Rehbinder, Controlling the Environmental Enforcement Deficit: West Ger­ many, 24 Am. J. Comp. L. 373, 376-77 (1976). 91 See GG art. 1 9 (4 ). 92 See Carl Bohret, Public Administration in a Democracy, in Public A dministration in the F ederal R epublic of G ermany 3 3 , 42 (Klaus König, Hans Joachim von Örtzen & Frido Wagener eds., 1 9 8 3 ); Michael S. Greve, The Non-Reformation of Administrative Law: Standing to Sue and Public Interest Litigation in West-German Environmental Law , 22 Cornell I n t ’l L.J. 1 9 7 , 2 0 1 - 0 2 ; Hans Schafer, Verfassungs- und Verwaltungsgerichtsbarkeit, in 1 Staatsbür­ ger und Staatsgewalt 1 5 9 , 1 7 0 (Helmut R. Külz & Richard Naumann eds., 1 9 6 3 ). 93 See Rudolf Steinberg, Verwaltungsgerichtlicher Umweltschutz: Voraussetzungen und Reich­ weite der egoistischen Umweltschutzklage, n /1 2 Umwelt - und P lanungsrecht 3 5 0 , 3 5 8 (1 9 8 4 ). One partial exception occurs in planning law, because the Baugesetzbuch requires that public and private interests be balanced. See Baugesetzbuch [BauGB] § 1 (6 ), 1 9 8 6 BGBl. I 2 2 5 3 , 2 2 5 4 . Judicial review of the adequacy of this weighing process is possible. See Letter from Prof. Winfried Brohm, Faculty of Law, University of Konstanz, to Prof. Susan RoseAckerman, Yale Law School 2 (June 7 , 1 9 9 3 ) (on file with the Harvard Law School Library). 94 See supra p. 1 2 8 8 . 95 Actions challenging the constitutionality of a state or federal law, or challenging the compatibility of state law with federal law, cannot be used to review legal regulations and are not available to private individuals or groups. Such cases can only be brought by state or federal governments or by one-third of the members of the Bundestag. See GG art. 9 3 (1 X2 ). “Concrete norm-control” actions under GG art. 1 0 0 (1 ), which deals with inter-court referrals of constitutional questions, apply only to formal laws, not to regulations. See Ossenbühl, supra note 8 5 , at 4 2 2 - 2 3 . The administrative courts can invalidate Lander regulations (Rechtsvor­ schriften)1 through “norm-control” actions brought by individuals who have been damaged or who expect to be damaged. See Verwaltungsgerichtsordnung [VwGO] § 4 7 , i 9 6 0 BGBl. I 1 7 , 2 2 ; Ossenbühl, supra note 8 5 , at 4 2 2 - 2 3 .

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the licensing of particular nuclear plants, 96 environmental activists and concerned neighbors brought their opposition before the courts. These cases, although seldom successful on the merits, did serve to delay projects and raise public concern. 97 Local citizens’ initiatives (Bürgerinitiativen ) have helped to orga­ nize the concerned public. 98 However, neither organized environmen­ tal groups nor Bürgerinitiativen can be plaintiffs unless they can demonstrate that their organization’s rights have been violated. 99 To meet this requirement and obtain standing, Bürgerinitiativen have purchased land near major projects — a practice upheld by the Fed­ eral Administrative Court. 100 Outside of those Bürgerinitiativen that have been able to purchase nearby land, access to court is limited to neighbors of planned facilities and to residents of communities where nature protection plans will be

96

For a series of case studies involving nuclear plants, see Von der B ittschrift zur um technische G rossprojekte, cited above in note 8 4 . Im­ portant projects often provoked demonstrations with tens of thousands of objectors. See Dieter Rucht, Wyhl: Der Aufbruch der Anti-Atomkraftbewegung, in Von der Bittschrift zur P latz­ besetzung : Konflikte um technische G rossprojekte, supra note 8 4 , at 1 2 8 , 1 4 9 . 97 See Jost Halfmann, Social Change and Political Mobilization in West Germany, in I n ­ dustry and Politics in W est G ermany : T oward the T hird R epublic 5 1 , 81 (Peter J. Katzenstein ed., 1 9 8 9 ); Eckard Rehbinder, The Role of Administrative Courts in West Germany 2 4 ( 1 9 8 5 ) (unpublished manuscript, on file with the Harvard Law School Library) (stating that nuclear power cases “have seldom been successful on the merits in the first instance and never in the second and third instances”). For examples of how activists have used the courts, see Dorothy N elkin & M ichael Pollak , T he Atom B esieged 1 5 5 - 6 6 (1 9 8 1 ); and Rucht, cited above in note 9 6 , at 1 3 6 - 3 7 . 98 Over time some of these groups have taken on a more permanent character. An umbrella organization, called the Bundesverband Bürgerinitiativen Umweltschutz (BBU), was founded in 1 9 7 2 . See Rucht, supra note 8 8 , at 3 5 5 . 99 See Rehbinder, supra note 9 7 , at 16 - 1 7 ; see also VwGO § 4 2 (2 ), i 9 6 0 BGBl. I 1 7 , 22 (“Unless otherwise determined by law, suit is admissible only if the plaintiff claims to be violated in his rights by the administrative act or its denial or omission.”). It is not enough that the government’s action be illegal. In addition the plaintiff must actually have been injured in a “subjective,” or individual, right. See Hans Jarass, Drittschutz im Umweltrecht, in F est­ schrift für R udolf Lukes 5 7 , 5 8 (Herbert Leßmann, Bernhard Großfeld & Lothar Vollmer eds., 1 9 8 9 ). The only exceptions are very limited state law provisions concerning implementation of the Nature Protection Law, which permit groups to participate in some state and local planning processes. They do not, however, give those groups access to the judiciary. See NatSchG § 2 9 , 1 9 8 7 BGBl. I 8 8 9 , 9 0 2 - 0 3 . Ten of the German states permit nature protection groups to challenge their procedures in court. The Federal Administrative Court has upheld the consti­ tutionality of such provisions, see Judgment of Dec. 1 8 , 1 9 8 7 , 78 Entscheidungen des Bundes­ verwaltungsgerichts [BVerwGE] 3 4 7 , 3 5 3 - 5 6 , and even in the absence of such provisions, has allowed a nature protection group access to court to claim that it was not consulted at all, see Judgment of Oct. 3 1 , 1 9 9 0 , 10 Neue Zeitschrift für Verwaltungsrecht [NVwZ] 1 6 2 , 1 6 4 - 6 5 . 100 See Rudolf Steinberg, Judicial Review of Environmentally-Related Administrative Deci­ sion-Making, ii T el Aviv U. Stud . L. 6 1 , 6 4 (1 9 9 2 ). The Administrative Court has held that it is acceptable for organizations to obtain standing through the purchase of a small piece of property in the neighborhood of the challenged project. See Judgment of July 1 2 , 1 9 8 5 , 72 BVerwGE 1 5 , 1 6 . P latzbesetzung: Konflikte

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implemented or plants built. 101 Yet some projects, such as coal-fired and atomic power plants, produce geographically far-reaching harms. Others, such as conservation proposals, benefit nature lovers living far from the site but arouse opposition from nearby neighbors. Stand­ ing in such cases is all but impossible for those who live at a distance from the project. 102 They must show that injury is likely — a difficult task for most potential plaintiffs. 103 Although the administrative courts have not completely ruled out claims of long-distance harm, the damage one might suffer in a possible nuclear power plant accident is not sufficient for standing purposes. 104 A high risk of injury to a few people may confer standing, but a small risk of injury to millions of people does not. 105 Once granted standing, individuals can defend only their own particular interests, not public interests. 106 Thus, an individual can­ not threaten an entire project if the problem can be solved with specific protective measures or with the payment of compensation. 107 Furthermore, if only neighbors have standing to challenge a project, a solution crafted by the courts may reflect only the concerns of the neighbors, whose rights are the only ones implicated under German law. For instance, a court might order the construction of highway embankments to limit noise or the payment of compensation for the purchase of soundproof windows — measures that will not satisfy those seeking preservation of the natural landscape. 108

101 See Thomas A. Ormond, Environmental Group Actions in West Germany, in Partici­ pation and

L itigation R ights

of

E nvironmental Associations

in

E urope 77, 82-83

(Martin Führ & Gerhard Roller eds., 1991); Steinberg, supra note 100, at 63-69. 102 Sec Steinberg, supra note 93, at 355-56. The courts have defined the neighborhood of a nuclear power station to be a zone of about 30 kilometers around the plant. See Ormond, supra note 101, at 82; see also Wolfgang Baumann, Betroffensein durch Großvorhaben: Über­ legungen zum Rechtsschutz im Atomrecht (pt. 1), 9 Bayerische Verwaltungsblätter 257, 259-60 (1982) (reviewing the nuclear power cases up to 1982). I0J In one case, an individual who lived 45 kilometers from a nuclear power plant argued that he should be treated as a neighbor subject to “other hazards” under the Air Pollution and Noise Control Act. See BImSchG § 5 (1 ), 1 9 7 4 BGBl. I 7 2 1 , 7 2 4 . If he were judged a neighbor, he could claim a right to participate in the licensing hearing. See id. § 1 0 , 1 9 7 4 BGBl. I, at 7 2 5 . However, the Federal Administrative Court denied him standing to bring his complaint before the administrative courts. Although the court admitted that procedural failures could produce violations of constitutional rights, it judged the risk of an explosion, on which the claim was based, to be too small to justify standing. See Judgment of Oct. 2 2 , 1 9 8 2 , 9 8 Deutsches Verwaltungsblatt [DVB1] 1 8 3 , 1 8 3 - 8 4 . 104 See Judgment of Jan. 1 1 , 1 9 8 5 , 7 0 BVerwGE 3 6 5 , 3 6 8 - 7 1 ; Judgment of Dec. 2 2 , 1 9 8 0 , 61 BVerwGE 2 5 6 , 2 6 2 - 7 1 ; see also Steinberg, supra note 1 0 0 , at 6 6 - 6 7 (criticizing the reasoning of the latter case). 105 See Baumann, supra note 1 0 2 , at 2 6 5 . 106 See Jarass, supra note 9 9 , at 6 1 - 6 2 . 107 See Peter Badura, Schutz Dritter durch Nebenbestimmungen einer Planfeststellung oder Genehmigung, in Festschrift für Rudolf Lukes, supra note 9 9 , at 3 , 9 - 1 4 . 108 See Johann Bizer, T homas O rmond & U lrike Riedel, D ie V erbandsklage im N aturschutzrecht 2 8 - 2 9 ( 1 9 9 0 ).

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Germany’s administrative law system comes close to Justice Scalia’s view of the ideal relationship between the courts and administra­ tive agencies. 109 Review of high-level actions is difficult because no statute sets the procedural parameters for ministry policymaking. Ju­ dicial review is not used to safeguard the democratic legitimacy of rulemaking. And even when the legality of a rule does come before the court, the judges do not evaluate the procedures used in crafting that rule. 2. Informal Agreements. — As a consequence of the anemic quality of judicial review, German executive-branch policymaking tends to lack formality and accountability. No judicially enforceable statute constrains administrative policymaking. As a result, informal prom­ ises by industry groups to meet certain standards are sometimes nei­ ther legally binding nor publicly known. 1 1 0 Such practices are possible because the laws permit, but do not require, regulations or guidelines and set no deadlines for the issuance of formal standards. The use of informal agreements makes outside review, not only of the process, but also of the substantive standards, impossible. To take a concrete case, the government has the legal power to issue regulations governing the content of detergents. 1 1 1 On at least one occasion, the Minister approved measures laid down in a letter from four industry associations instead of issuing a legally binding regulation. The letter was published in a federal register only after career officials in the Ministry applied pressure. 1 1 2 In its published form, the letter can be distinguished from a regular legal ordinance only by the absence of section signs. 1 1 3 Similar informal agreements have been used to stop the use of volatile chlorinated hydrocarbons and to decrease the use of chlorofluorocarbons in spray cans. 1 1 4 More recently, asbestos was regulated by means of an informal letter that has not been made public. 1 1 5 Such practices are less common in the United States, because American statutes are much more likely to set deadlines and to re109 See supra pp. 1 2 8 5 - 8 7 . 110 See R üdiger B reuer, Verhandlungslösungen aus der Sicht des deutschen Umweltschutz­ rechts, in 1 Konfliktbewältigung durch Verhandlungen , supra note 2 3 , a t 2 3 1 , 2 5 0 51; G erd W inter, Gesetzliche Anforderungen an Grenzwerte für Luftimmissionen, in Grenz­ I nterdisziplinäre U ntersuchungen zu einer Rechtsfigur des U mwelt -, A rbeits - und L ebensmittelschutzes 1 2 7 , 1 4 0 - 4 1 (G erd W inter ed., 1 9 8 6 ). 1,1 See G esetz ü b e r die U m w eltv erträg lich k eit von W asch- und R einigungsm itteln [W R M G ]

w erte :

§ 9 (2 ), 1 9 8 7 B G B l. I 8 7 5 , 8 7 8 . 112 Interview with Eberhard Bohne, Ministerialrat at the Ministry for the Environment, Nature Protection and Nuclear Safety, in Bonn (Feb. 1 9 , 1 9 9 2 ) (discussing this incident). 113 See Verfahrensregelung zur Mitteilung der Angaben nach § 9 Wasch- und Reinigungs­ mittelgesetz, 41 BAnz. (Beilage) No. 4 0 a, at 3 - 1 0 (Feb. 2 5 , 1 9 8 9 ). 1,4 See Breuer, supra note no, at 2 5 0 - 5 1 . 11S See In te rv iew w ith B ohne, supra note 112 (discussing the policym aking process in the F ed eral E n v iro n m e n tal M inistry).

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quire, rather than simply to permit, rules. 1 1 6 Although agencies issue guidelines and circulars to aid implementation, such measures cannot legally take the place of rules. Private agreements between regulated industries and the government generally cannot be handled with the secrecy and lack of accountability that is possible in Germany. Nevertheless, informal industry-agency procedures have been used in the United States under the pesticide law , 117 and voluntary com­ pliance programs have been proposed for substances that contribute to global warming. 1 1 8 These practices raise concerns about effective­ ness and democratic accountability. Less problematic is the provision in the 1 9 9 0 amendments to the Clean Air Act that encourages pro­ ducers of air toxins to reduce their discharges “voluntarily” in advance of a formal, technology-based rule. Firms that reduce their discharges by 9 0 % before the applicable rule is proposed are exempt from the rule for six years, provided they meet an alternative standard reflecting their initial reduction. 1 1 9 This measure gives firms an incentive to act quickly despite the long lead time needed to produce rules. Because the early reduction program sets definite statutory guidelines for im­ plementation, it provides a flexible solution without sacrificing dem­ ocratic legitimacy, openness, or clarity. III.

C o n c l u s io n s

An analysis of German administrative law and practice can help Americans decide whether they wish to move toward a system that restricts judicial review of agency policymaking processes. Given the necessity of delegation, and the rise in the use of private experts and informal procedures, the risks of unconstrained administrative power should be clear. The informal, undocumented, and poorly understood processes outlined above suggest the kinds of problems that can arise. The American bureaucracy, lacking Germany’s close connection be­ tween executive and legislature, would have even more independent power than German authorities if not constrained by procedural limits. Judicial review of high-level policymaking processes provides a needed

116 See, e.g., 42 U.S.C. §§ 7 4 0 9 (a)(1 ), 7 4 1 1 (b)(1 ), 7 4 1 2 (b)(1) (1 9 8 8 ) (requiring the EPA to publish air pollution regulations before certain prescribed dates). 117 See Environmental Defense Fund v. Costle, 63 1 F.2 d 9 2 2 , 9 2 4 - 2 5 , 9 3 2 —37 ( 1 9 8 0 ) (de­ scribing the EPA’s “Rebuttable Presumption Against Registration” proceeding), cert. denied, 4 4 9 U.S. 111 2 ( 1 9 8 1 ); C hristopher J. Bosso, Pesticides and Politics : T he Life Cycle of a Public I ssue 1 9 4 - 9 7 ( 1 9 8 7 ). 118 See John H. Cushman, Jr., Clinton Urging Voluntary Goals on Air Pollution, N.Y. T imes , Oct. 19, 1993, at A23; Margaret Kriz, Lukewarm, 25 N at ’l J. 2028, 2028 (1993). 119 See 42 U.S.C. § 7412(1x5) (Supp. Ill 1991); O ffice of Pollution P revention &

Toxics, U.S. E nvironmental P rotection Agency , EPA’s 33/50 P rogram, F ourth Prog­ ress U pdate 1-7 (1993).

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check on agencies’ tendency to ignore the democratic basis of their power. Americans need to distinguish between relatively superficial prob­ lems, which stem from failures of management, financial resources, and bureaucratic competence, and more basic flaws in the structure of democratic government itself. Even if the current American review process is cumbersome and imperfect, it responds to a genuine prob­ lem. Bureaucratic processes that emphasize openness and reasoned decisionmaking help to justify the necessary delegation of policymak­ ing to the executive. The courts can enhance the democratic legiti­ macy of the modern American state by ensuring that basic procedural conditions are met. Americans should not rush either to embrace consensual processes or to remove the courts from their role as mon­ itors of democratic legitimacy.

[7] Codification of Administrative Law: The US and the Union Martin Shapiro*

Abstract: The US Administrative Procedures Act o f 1946 was engendered by partisan political conflicts. Initially judicial review of administrative rule-making under the act was extremely deferent. In the course of the 1960s and 1970s the federal courts, basing themselves upon the unchanged language o f the statute, created a new body of administrative law characterised by very great demands on the agencies and very intrusive judicial review. This transformation was fuelled by partisan realignments, fear of technocracy and desire for greater transparency and popular participation in government decision-making. Because these same forces are now active in relation to the Union, it may be anticipated that similar tendencies toward a demanding procedural law of rule-making and high levels of judicial review will be felt as Union administrative law develops.

I Different Traditions and Institutions Any sort o f comparison of the codification o f administrative law in the US and the European Union obviously begins with the enormous differences between the two in legal tradition, historical circumstances and current situation. Yet eventually I am going to argue that the American experience o f the last thirty years or so may well foreshadow current and future developments in the Union, that from what happened in the US we may be able to predict what will happen, or at least what has the potential for happening, in Europe. The beginning o f this account will do full justice to the differences. As we proceed, increasing attention will be paid to alleged convergences. In the English-speaking legal tradition we must begin with the classic late 19th century liberal view enunciated by Dicey, who held that the absence of administrative law was one o f the hallmarks o f the rule of law1. The rule o f law required that in any dispute with one o f its citizens, the state itself be treated as if it were a private party subject to the same laws and the same courts as other private parties. Continental systems o f separate administrative law and administrative courts, in D icey’s view, invariably endowed the state with a special and elevated status as guardian o f the public interest while individuals involved in a dispute with the state were seen as

* University of California, Berkeley. 1 A. V. Dicey, Introduction to the Law

o f the Constitution

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representing only their own special interest. The preference for the state over the individual that inevitably followed was, to Dicey, one o f the characteristics that distinguished the statism o f the Continent from the true rule o f law to be found off its coast. The Diceyian position was far stronger in America than in the mother country. In England it was tempered by the conviction that the Crown and its ministers must have the power to govern. In the US it was exaggerated by a democratic suspicion of all government and most especially o f executive or administrative government by an elite. There were, o f course, many statutory and internal rules of government management. There was the ancient learning o f the prerogative writs and, as we shall note later, there was a strong element of constitutional law control o f administration. Until the 1930s, however, there was no separate and explicit body o f administrative law, only a scattering of jurisdictionally narrow and fragmented administrative tribunals, and no courses on administrative law as such in the law schools. Indeed in the 1930s a major debate, along explicitly Diceyian lines, raged in the American Bar Association and in academic circles over whether American law should know such a thing as adminis­ trative law. Roscoe Pound, the leading American jurisprude o f the early 20th century and Dean of the Harvard Law School, led the forces o f opposition to such a foreign incursion. It was the sudden, dramatic expansion in the scope and sheer size o f the federal administration in Washington entailed by the New Deal that brought on this debate. This expansion also changed the terms o f the debate and transformed it into a partisan conflict between the Republican and Democratic parties. The Republican party had held the Presidency throughout the 1920s and had thus appointed most of the federal judges sitting in the ’30s. Massively defeated at the polls in the ’30s, the Republicans looked to the judiciary to stop the New Deal juggernaut. Armed with the electoral mandate, the New Deal Democrats trumpeted not a government o f laws but a government o f executive or administrative discretion informed by technological expertise. Like most o f the New Deal, this emphasis on technocratic government was not really new. It simply picked up an older American political movement called Progressivism. It did so, however, with such overwhelming electoral backing, in such a climate of economic emergency, and in such a time o f growth o f totalitarianism elsewhere, that to the enemies o f the New Deal the rule of law seemed threatened. Thus Republicans came to accept and even champion the explicit formalisation o f administrative law, even with the statist implications about which Dicey had warned, because such a law promised to impose some limits on the unlimited, technocratic, government discretion that the New Deal was claiming as its electoral reward. But the Republicans championed administrative law if, and only if, it retained a key Diceyian cornerstone. Administrative law must provide that all government actions be subject to judicial review and by review in the regular courts of general jurisdiction. Of course this Diceyian virtue corresponded with the constitutional and political realities that, of the three separate and independent branches o f US government, the Democrats decisively controlled two but the Republicans still maintained a strong presence in the judiciary. Thus in the late 1930s, anti-New Deal political forces in Congress pushed for an administrative procedures act. The New Deal responded, as it often did to its enemies, by promising an even bigger and better act after a careful study conducted by its own tame bureaucrats and lawyers. A Presidential commission was established, and a bill drafted and proposed to Congress that essentially legitimated New Deal practices. By © Blackwell Publishers Ltd. 1996

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the late 1930s, the New Deal had lost sufficient strength in Congress to a coalition o f Republicans and conservative Southern Democrats that this proposed legislation, along with much other proposed legislation, did not pass. In 1946, just after the War, and with 1930s esprit de corps o f the New Deal much diminished, an Administrative Procedures Act was passed2. It was a grand compromise of Republican and New Deal positions. It divided government action into three rough categories: adjudication, rule-making and discretion. Where government agencies were deciding questions o f the specific legal rights o f individuals, government was to act in a Republican way, that is a court-like way. The agencies were to establish tribunals presided over by ‘hearing officers’ who were to remain agency employees but enjoy much independence. Decisions were to be made on the basis o f a trial-like record and on substantial evidence in that record. There should be court-like findings and all such decisions would be subject to appeal to the regular federal courts3. In short, there should be administrative adjudications comparable to judicial trials and subject to the same kinds o f judicial appeals as are judicial adjudications. Where matters were committed by law to agency discretion, things were to be done mostly in a New Deal Democratic way. One section o f the APA says that such discretion is not subject to judicial review at all4. Another says it is subject to judicial review but may be struck down by the reviewing court only if the discretionary decision is ‘arbitrary and capricious’5. There are no reasons giving or record or evidentiary requirements. It is in the third category, rule-making, that the Republican-Democratic compromise is most complex and interesting. American rule-making is what the English call supplementary or delegated legislation. Constitutionally the executive branch has no decree power. Whatever power it has to make legislative rules or even internal rules o f management must come to it by authorising Congressional legislation. The APA provides that in rule-making, the agency involved must give notice that it contemplates making a rule, must afford an opportunity for outsiders to comment, and must publish its rule accompanied by a ‘concise and general statement of its basis and purpose’. The agency is not required to hold a hearing, nor to compile a record nor to base its rule on any quantum o f evidence. But the rule is subject to judicial review both as to its lawfulness, that is whether it is in accord with the particular statute that authorises this particular rule to be made, and also as to whether it is ‘arbitrary and capricious’6. Here the Republicans won on judicial review. But the Democrats succeeded, at least initially, in emasculating that review. With no record before it, and only the briefest agency explanation, it would take a particularly aggressive judge to claim that an agency o f a co-equal and independent branch o f government had acted like a lunatic, that is had been arbitrary and capricious. In fact in the 1940s and ’50s, rules almost never failed the arbitrary and capricious test. 2

Much of interest about the origins and later evolution of the APA can be found in ‘The Administrative Procedure Act: A Fortieth Anniversary Symposium’, (1986) 72 Virginia Law Review 215-492. 3 5 USC Sec 706(2)(A). 4 5 USC Sec 701(a)(2). 5 5 USC Sec 706(2)(A). 6 5 USC Sec 706(2)(A). Whenever in the article I make reference to US federal rule-making, I am referring to ‘informal rule-making’ as governed by the sections of the APA cited here and in those of comparable statutes. The APA also specifies another form of rule-making, often called ‘formal rule-making’, for certain specific situations. This form of rule-making requires an adjudicatory style of hearing, record and judicial review. 5 USC Sec 553(c).

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The APA was a ‘codification’ in the peculiar English-speaking or perhaps only American sense of that term. It organised and recognised in a single statute a large number of previously existent governmental practices, some o f which had previously been specified in scattered ways in earlier statutes or court holdings and others o f which had been agency customary practice. But unlike civil law codes, the APA did not claim to be either logically or empirically complete nor even to supersede earlier legislation. The APA is a ‘residual’ statute. It applies only when no other federal statute specifically provides procedural rules for a particular kind o f government action. Typically when Congress enacts a statute creating a new executive agency and/or creating a new federal programme, that particular statute will contain clauses establishing the procedural rules and judicial review standards for that particular agency and/or programme. In short, nothing could appear more different from the current situation of the European Union in confronting the question o f codifying administrative law than the origin and early history o f the US Administrative Procedures Act. That act was considered against a legal tradition, one of whose outstanding and boasted charac­ teristics was the absence o f a distinct administrative law. The act was the product o f partisan conflict between the two national political parties, and because it was the product o f such a conflict, it contains a series o f compromises which may make political, but no particular legal, sense. Moreover, and again because o f its com ­ promise nature, the APA leaves many matters uncertain, consigning them to further institutional development. And finally the APA is not even a code. One other major difference between the US and Europe must be noted. Because of their long experience o f constitutional judicial review, Americans almost un­ consciously adopted a crucial analogy. The Constitution authorised and thus legally legitimated statute-making by Congress. Statutes authorised and thus legally legitimated rule-making by agencies. If the courts had the power to nullify whole statutes on the grounds that they conflicted with the Constitution, then obviously the courts should have the power to invalidate whole rules that conflicted with their authorising statute. The power o f American courts to invalidate rules themselves, not simply the particular applications o f such rules, has never been seriously at issue in the US. On this question, two traditions that may be roughly labelled Germanic and Romantic have long existed in Europe. The German tradition is one o f the invalidation by administrative courts only of applications, not rules themselves7. The French, Italian and Greek Councils o f State have long held that administrative regulations themselves are administrative ‘acts’ subject to Council declarations of legal invalidity. The Netherlands is now in the process o f moving to the Romantic camp. The German situation itself seems highly unstable. The German Constitution requires that administrative regulations have a basis in statutory law. The Constitutional Court will declare unlawful regulations unconstitutional often by abstract review. Under these conditions it appears highly anomalous that German administrative courts will not invalidate a regulation as unlawful even in concrete review. Indeed the American experience o f pre-enforcement judiciary invalidation of rules themselves, rather than only their application in particular instances, may be o f particular interest to Europeans given the Council’s growing practice o f delegating supplementary rule-making authority to the comitology process. As the Union regulatory regime matures, it seems likely that more and more of its details will have to 7 See J. Schwarze, European Administrative Law © Blackwell Publishers Ltd. 1996

(Sweet and Maxwell, 1992) p 121.

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be filled in by such delegated supplementary law-making which Americans call rulemaking. For Americans it is natural and normal that a court may look to the lawfulness o f a rule itself as well as its application in a specific case and invalidate the rule if the court finds it unlawful. In one European tradition the capacity o f a court to block application o f a rule in a particular case but its incapacity to invalidate the rule itself has been viewed as a cornerstone of administrative law. One final, and perhaps most fundamental, difference between US and European traditions must be noted. While the European practice o f judicial review o f applic­ ations but not the rules themselves may appear to be a quintessential legal one, it is grounded in a particular set o f political institutions, namely a parliamentary as opposed to a presidential system and a system o f strongly disciplined parties. Where both Parliament and the ministries are controlled by a strong cabinet, judicial invalidation o f delegated legislation on the grounds that the rule was in conflict with the authorising legislation usually leads to an immediate response. But the cabinet need not order the relevant ministry to write a new rule to conform to the statute. Instead it is likely to order the Parliament to amend the statute to comply with the rule. And because the government consists o f a party or coalition o f parties that can order its members in Parliament to vote for government legislative proposals, the Parliament will vote to amend the statute in any way the government wants. Thus judicial invalidation o f rules would be an exercise in futility. The American judicial review practice has punch precisely because the American executive rarely has that kind o f hair trigger control over Congress. Even when his party controls Congress, the American president cannot count on Congress to amend the statute to save an executive rule invalidated on statutory grounds by a court. Sometimes Congress will, sometimes it won’t. Thus the most significant difference between US and European administrative judicial review is grounded in fundamental differences in two basic political institutions, executive-legislative relations and political parties. Here again, however, the contrast between the US and Europe is fading and is particularly inapplicable to the Union. In many European states party discipline has weakened and/or weak coalition governments prevail, so that where a court invalidates a rule as unlawful, the government may not be able to simply order the Parliament to alter the statute to conform to the rule. Moreover in those European states where constitutional review exists, a new statute passed to cure the invalidation o f a rule might itself be found unconstitutional. Thus many European judges who have the power to invalidate administrative regulations would not now view such an invalidation as an exercise in futility. Moreover the constitutional and political structures o f the Union are simply not such that if the Court o f Justice invalidates a piece o f U nion sub-legislation, som ething called the ‘governm ent’ could then order something called the ‘Parliament’ to amend the statutory law to bring it into line with the administrative regulation that had been judicially invalidated. Where the European Court o f Justice legally invalidates a Commission pronouncement or other sub-statutory rule or act, either that invalidation is ‘constitutional’ (based on a conflict found between the norm and the Union treaties) and thus final or could only be cured by the Council amending the Council-enacted norms that the Court has held failed to authorise the sub-legislation. And the Council, by its very nature, cannot be counted on to automatically back Commission or com itology sub-legislation against the Court. Thus the Court o f Justice rarely if ever faces a situation in which if it were to find a U nion

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administrative act in conflict with Council-enacted statutory law, the statute would automatically be changed to validate the act.

II New Deal Discretion and Republican Rules The great differences between the administrative law of the US and Europe largely lie in the realm o f statics, that is o f traditions o f legal doctrine and legal and political institutions that stabilise law and inhibit legal change. It is in the realm of dynamics that US and European administrative law exhibit a certain degree of convergence. In a sense all administrative law, perhaps simply all law, is driven by a single core dynamic, the dialectic between rule and discretion. As we have known since Plato, general rules never quite fit all o f the specific cases to which the governor seeks to apply them. Perfect justice would require not rules but perfect discretion in which those in authority responded sensitively to each particular human situation they encountered rather than mechanically applying the same set o f rules to all. That perfect tool, discretion, is alas subject to the endless imperfections of the humans who employ it: partiality, corruption, arbitrariness, ignorance, illogic. Thus as Plato too noted, real political regimes must resort to rules even while recognising the appeals of discretion. Generally speaking, administrative law shows a relatively constant movement from discretion to rule. As societies confront grave new problems, the first move is to establish new avenues of discretionary government authority to deal with them. Flexible, quick response, power always seems the best way to deal with emergencies, and societies are forever confronting new emergencies. As time passes, and the human failings of the wielders o f discretion accumulate, rules come to be substituted for discretion8. The modern nation-state exhibits a pattern in which politicians endlessly seek to expand their discretion and, after each new quantum of discretion is vested in the governors, lawyers run around seeking to cabin it with new rules: new discretion to get the job done; then new rules to protect the citizens from potential abuse o f the discretion. This is not to say that there is a constant reduction in the quantum of discretion and increase in the quantum o f rules, a kind o f constant progress toward the rechts stadt. Rather new discretions are always being created and rules are constantly running to keep up. The long elaboration o f a more and more fine spun elaboration o f administrative law in both the US and Europe may be only a sign that law is keeping its head above water in a sea o f discretion rather than an indication that the sea is being successfully drained. A second dynamic involves social and political responses to technology and specifically to technocracy, that is to the claim that those who know things should rule. Such a claim engenders a conflict between technocracy and democracy. Even in modem, fully developed states, the demos knows far less than many sets of technical experts. The claim that those who know, or experts, should rule is thus at odds with the claim that the people should rule. In the United States the rival claims o f democracy and technocracy long remained quite dramatically unresolved. Initially the two great political parties in the United 8

I believe this is an example of the autopoietic forces central to the thinking of Niklas Luhmann and his followers (see G. Teubner and A. Febbrajo (eds), State, Law and Economy As Autopoietic Systems: European Yearbook o f the Sociology o f Law (Guiffre, 1991-92). However, contrary to their teachings, I believe that many political and social forces do have a direct and immediate influence on law as I shall shortly argue in relation to anti-technology sentiment and demands for transparency and participation.

© Blackwell Publishers Ltd. 1996

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States each took up one o f the claims. The Federalists lauded technocratic govern­ ment. The Democrats sang the virtues o f popular rule. Their theory o f bureaucracy was the ‘spoils system’ and ‘rotation in office’. In their view each time one o f the political parties won an election, some o f its rank and file should take over all the offices o f administration. When that party lost some subsequent election, all o f its office holders should be dismissed to be replaced by rank and file members o f the winning party. In this way no long-term, professional, expert bureaucracy should arise. Instead party-defined sets o f the people, rotating groups o f Cincinnati, should take turns in office, avoiding the estrangement o f the governors and the government from the people that necessarily arose when governing became a special occupation. Except for a few tiny islands o f bureaucratic expertise, the Democratic vision was the actual practice o f the United States for its first hundred years. Only very late in the 19th century did the Progressive Movement cut across the lines o f the two major political parties to call for government by experts. Progressivism led to the gradual professionalisation o f bureaucracies on the British ‘civil service’ model. It went further, however, seeking to carve out a whole range o f ‘non-political’ government services that should be administered by experts free o f any direct control by elected politicians. The city manager, the municipal police, sanitation and health commissions, the state utilities commissions and the federal independent regulatory commissions are the products o f this vision. Elements o f popular control were injected but such control was to be bipartisan or unpartisan rather than through the central democratic mechanisms o f party electoral competition. In the Progressive era, from the 1890s until the 1920s, democratic and technocratic visions were often at war with one another. The New Deal theory o f the ‘strong Presidency’, which dominated the 1930s and ’40s, resolved the conflict between democracy and technocracy - a democratic President directing a technocratic bureaucracy was to provide the solution to America’s disastrous economic problems. All of this may appear to be the very British notion o f a neutral bureaucracy taking the direction o f the government of the day. It was not. New Deal Democrats did not envision the Republicans ever again taking control o f the White House. In the 1930s the Democratic Party did not take over an ongoing bureaucracy that had previously served the previous three Republican presidents. That old bureaucracy was simply swamped by a flood o f new, young men (and a few women) attracted to Washington precisely because they believed in the New Deal and wanted to work for it. Neither they nor those who recruited them saw them as joining a neutral civil service dedicated to serving whomever got elected. These people were not joining the civil service. They were joining the New Deal. Their virtue was not neutrality but New Deal enthusiasm. Technicians they were, but technicians devoted to Mr. Roosevelt. It is precisely for this reason that the movement for an APA, for a replacement of expert discretion by rules, arose in Republican circles in the 1930s. The APA is not primarily a Congressional response to the sudden enormous growth o f discretion wielded by the executive branch. It is a Republican response to the growth o f a Democratic bureaucracy. It distrusts discretion. It distrusts technocracy. But most of all it distrusts Democrats. It is necessary to understand these partisan origins of American administrative law in order to understand why that law worked one way in the two decades immediately following the passage o f the APA in 1946 and in an entirely different way in subsequent decades. When Republicans pushed for a codification o f federal administrative law in the 1930s, in which judicial review was to be a keystone, they did

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not have to distinguish between the general propensity o f judges to subordinate administrative discretion to rules and the general propensity o f Republicans to rein in New Deal enthusiasms. Nor did they see the issue as one o f democracy versus technocracy. In the 1930s a newly recruited New Deal bureaucracy faced a federal judiciary, most o f whom had been appointed by the unbroken run o f three Republican presidents in the 1920s. Judicial review would mean Republican judges constraining the discretion o f Democratic bureaucrats. Alas, the APA was not enacted until 1946. By the time serious enforcement began, the federal judiciary was dominated by Mr. Roosevelt’s appointees, for Mr. Roosevelt, all by himself, had been president longer than all three o f the Republican presidents of the 1920s combined. When New Deal judges faced New Deal bureaucrats, the issue was not discretion versus rule, nor democracy versus technocracy, nor Democrat versus Republican. There was no issue. New Deal judges simply could not believe that New Deal bureaucrats would do anything wrong. The dominant administrative law doctrine o f the 1950s and early 1960s was that o f judicial deference to administrative expertise - not only on questions o f fact but on questions o f law. This judicial acquiescence in technocratic government was fostered by the victories that the New Deal had won in the struggle over the APA itself. For remember, in the crucial sphere of delegated or supplementary legislation, the APA did not require that the rule-making agency compile a record, meet any particular evidentiary standard or fully explain why it had made the rule it did. Faced with this blank wall, the courts reviewing agency rule-making had little choice but to presume, as they openly declared they did, that the agency had properly assessed the facts and interpreted the law. And New Deal judges surely believed that whatever discretion New Deal bureaucrats were wielding was being wielded in the right cause and the true faith. New Deal judges were hardly likely to say that New Deal bureaucrats had failed the APA sanity test; that is, had done something arbitrary and capricious. The consensus between New Deal bureaucrats and New Deal judges occurs in the 1950s and early 1960s. During that time period a Republican President had served two terms. The New Deal bureaucracy had survived nearly intact, although with reduced morale and energy. The federal bench, however, experienced a substantial infusion of Republican judges. During the 1960s the New Deal was beginning to fade into history. The alliance between New Deal administrators and New Deal judges eroded. The result was a major change in administrative law doctrine. From the complete judicial deference to administrative decision-making o f the 1950s, the US moved to the extremely activist, intrusive judicial review o f administrative action of the 1970s. One New Dealer could trust that another brother in the faith wielded his discretion wisely and in the public interest. When the brotherhood dissolved, judges began to demand that administrators prove to them that they had acted well.

Ill Causes of Judicial Activism: Anti-technocracy, Transparency and Participation Few American observers would attribute this shift from judicial passivity to judicial activism solely to the changing patterns of Republican and Democratic control over the three great branches o f the US national government. In part this reluctance to focus on political parties is the result o f the standard reluctance of academic lawyers © Blackwell Publishers Ltd. 1996

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to undermine the useful myth of judicial independence by acknowledging the role o f partisan politics in judicial decision-making. But in part the search for other causes o f the changes in US administrative law is well advised. First o f all, in the real world, as opposed to the world imagined by many social scientists, a major change in social practice is likely to be overdetermined, the result o f a number o f causes acting in the same direction rather than a single cause. Secondly, the end o f the New Deal consensus would certainly have engendered some level of policy disagreement between administrators and judges. But it is not inevitable and universal that such policy disagreements lead to active judicial intervention in the administrative process. We must look to a wide range o f reasons why American judges did not just ‘grin and bear it’ in the 1970s and ’80s when they disagreed with the agencies. We can begin with broad legal traditions. As we have already noted, the tradition o f activist, constitutional judicial review by the Supreme Court creates a kind of constant pressure toward activist statutory review o f rules as well. From this relatively concrete aspect o f legal culture, I wish to move to a very broad aspect not even of political culture narrowly conceived but o f general intellectual life. Western culture is often described as most distinguished from others by its deep commitment to science and technology. W ithout questioning the depth o f that commitment, it is necessary to acknowledge counter currents that sometimes trouble this ever expanding flow o f science. From time to time the West as a whole, and/or particular parts o f it, experience great waves o f suspicion or fear o f science and technology. The United States has been in the grip o f such a wave since roughly the end o f World War II. The atomic bomb and the Cold War showed us not the benevolent face o f technology but its very real potential for ending the human race. They also showed us that our most revered scientists and technologists were not purely public-spirited, politically neutral people in white coats pursuing truths by writing on blackboards and peering into test-tubes. The new big science needed big government money and produced big weapons. Scientists and technologists began to be seen not as disinterested, but as engaged in self-interested pursuit o f fame, fortune and tax dollars. Science turns into the ‘military-industrial complex’ denounced as early as President Eisenhower’s farewell address. This disenchantment with technology becomes merged with and increased by the anti-Viet Nam war movement. Science and technology are now napalm, helicopter gun ships and Agent Orange. The final fruition is, o f course, the environmental religion that grips us today. Science and technology are killing the world. If technology is the enemy, it must follow that technocracy, rule by technologists, is the last thing we want. We have seen that the US has always enjoyed two conflicting theories o f public administration, rule by experts and rule by the people. We have seen how the New Deal reconciled the two. We have seen the New Deal consensus eroding at the very time a new wave o f antitechnology sentiment is arising. By the 1960s, rule by experts was seen in the US as a grave danger because experts ceased to be seen as politically neutral, unselfish servants o f the public interest under the democratic control o f elected leaders. Instead experts came to be seen as simply another set of special interests each using its specialised knowledge as a political weapon wielded in pursuit o f its own selfish ends, ends that were often dangerous. And these special interests were particularly dangerous because their claim to policy-making authority was that they understood things that the rest o f us could not understand. Such claims were claims to be legitimate rulers beyond the control o f the demos. The reaction against technocracy took a number o f forms. One was an activist

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judicial review o f technocratic decision-making. That those who know about some particular thing should make the decisions about that thing is a powerful base o f legitimacy in Western culture. But it was precisely that claim to legitimate governing authority that was now regarded as a menace. The need was for some countervailing legitimate governing authority. Given the traditions o f an activist judiciary in the US, one available, countervailing legitimate governing authority was the judge. Judicial expertise is not merely a rival legitimacy to science but one peculiarly appealing to the American anti-technocrats of the post-World War II era. For to be a legal expert is not only to be expert in law but also to know nothing o f any of the technologies that make a modern industrial nation work. The judge had an expertise that allowed him to legitimately challenge technocrats, but it was not a technocratic expertise that would ally him to those technocrats. The judge had the clout o f the expert, but the ignorance o f the people. He thus became an ideal figure to reassert popular control over technocratic government. Because the technocrat functioned in a government o f laws, the judge might legitimately claim the right to examine the lawfulness of technocratic decisions. But that submission o f a government decision to a legal expert was also, and unavoidably, the submission o f a technological decision to a lay person, a non-technologist, and thus a representative o f the people. Elsewhere I have argued that as the US moved from an industrial to a post-industrial political economy, the judge moved from industrial idiot to post-industrial hero9. This strange status o f the judge as someone who could claim a share of governance on the basis o f a non-technological expertise was peculiarly attractive to the arch anti­ technocrats, the environmentalists. Environmentalists could not hope to achieve the destruction o f the modem industrial economy. At best, they could achieve a certain remission in technology through strong doses o f government regulation. Such regulation would, however, necessarily be highly technical in character. Thus it could only be implemented by technical experts. The environmentalist could only achieve his victory over technology by creating even more technocratic government. And these technocrats could not be trusted. The initial solution o f the environmentalists was to write new health, safety and environmental protection statutes containing many ‘agency forcing’ and ‘technology forcing’ provisions - that is, legal commands to implementing technocrats to get things done even when the experts claimed they couldn’t or shouldn’t be done. And these anti-technocrat provisions were combined in these statutes with other provisions providing for judicial review, sometimes under more rigorous standards than those of the APA, and for private rights o f action. Such private rights of action meant that the same environmental activists who had pushed the regulatory legislation through Congress in the first place could then sue the technocrats if they did not implement the legislation vigorously enough. The environmentalists could solve the paradox o f having to set technocrats they distrusted to regulate the technology they hated by injecting the judge as lay watchman poised to strike down technocratic pathologies10. Thus a combination o f the American legal tradition o f judicial activism and a major wave o f American anti-technocratic sentiment empowered judges o f the 1960s and ’70s to break out of the judicial passivity of the ’40s and ’50s engendered by the New Deal consensus and to begin the activist judicial review o f administration hoped for by the anti-New Deal forces that had pushed for an APA in the 1930s. 9 Shapiro, ‘Judicial Activism’, in S. M. Lipset (ed), The Third Century (Hoover Institution Press, 10 See M . Shapiro, Who Guards the Guardians (U niversity o f G eorgia Press, 1988) pp 80-87. © Blackwell Publishers Ltd. 1996

1979).

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All of this may seem rather cosmic, far removed from individual judges trying real cases. But remember that what we are trying to explain here is why a substantial number o f those real judges moved from almost total passivity to very active intrusion in administrative policy-making in a little over a decade. Or, to put the matter differ­ ently, the wording o f the APA was the same in 1960 as it was in 1970, but the judicial interpretation o f that statute had changed radically. What accounts for the change? Any comparative analysis o f administrative law reveals numbers o f nations with about the same statutes and doctrines o f judicial review o f administrative action. Yet, at any given time considerably more judicial intervention in administrative business will be found in some o f those nations than in others. And as the American example shows so startlingly, in any one country levels o f judicial intervention will vary widely from one time to another even when the statutes have not changed. Some forces other than narrowly legal ones must be causing those changes. In the final analysis, differences in levels o f judicial activity in various nations with roughly the same law must be accounted for in terms o f differing propensity o f the judges to intervene - to judicial self-confidence if you like. American judges deferred to administrators in the 1950s. By the 1970s they deferred to no one. In the 1950s they openly said, who are we, as laymen, to overturn expert administrative judgments. By the 1970s judges were saying, we are partners with administrators in administrative rule-making and indeed the senior partners with the final say. It was not the APA that had changed. N or did the review provisions o f new statutes significantly alter APA doctrine. What had changed was the judges’ belief in the relative capacity of administrators and judges to make the right decisions. This change in judicial beliefs runs too startlingly parallel to broad changes in political alignments and general world view to deny the connection between the two. The judges live in the same world o f Republicans and Democrats and technological angst as everybody else in Washington. The dialectic o f rule by experts and rule by the people governed not only the change in levels o f judicial intervention but the substance o f that intervention as well. So far we have been looking at one side o f the coin. If faith in technology is lost, then faith in technocracy, rule by technologists, is also lost. And we look around to find people to guard us against the technocrats, among others the judges. We may easily transpose this negative sentiment toward technocracy into a positive sentiment toward demo­ cracy. The evils o f technocratic government may be cured by a dose of democracy. More specifically, what becomes desirable is more popular participation and more transparency in bureaucratic decision-making. Transparency and participation are, o f course interrelated. The public cannot participate in government decision-making unless it knows what the government is up to. And public participation necessarily renders government decision-making more transparent. Without any changes in the language o f the APA, American administrative law moved from quite minimum demands for transparency and participation in the administrative enactment o f supplementary legislation (rules) to almost absurdly maximum demands for transparency and participation. Changes in American administrative law faithfully reflect shifting American attitudes toward the desirable balance between government by experts and government by the people.

IV Procedural Masks for Substantive Intervention There is, however, a second and more narrowly legal or institutional cause for increased judicial intervention taking the form o f judicial demands for transparency

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and public participation in the administrative rule-making process. A distinctive feature o f American administrative law is that it has always provided for substantive, as well as procedural, judicial review o f administrative decisions. A judge may invalidate a rule because the rule-making agency has failed to follow either statutorily mandated or its own announced procedures. A judge may also invalidate a rule because it is substantively wrong or unreasonable or, at least, very wrong or very unreasonable. As we have seen, the APA provides for such invalidation if the rule is arbitrary and capricious, which appears to mean very, very unreasonable. There is probably no Western judge who has ever been very comfortable with saying that the laws made by his fellow governors are invalid just because they are substantively bad. If the fellow governors made them, they must have thought they were good. If the judge now says they are bad, he is simply engaged in a policy disagreement with the rest o f government. And there is no reason to believe that the judge’s policy preferences are somehow more cosmically correct than the preferences o f those with whom he is disagreeing. Indeed, in political cultures that believe that the views of those who know about something are to be preferred over those who don’t, at least about the particular something at issue, there is good reason to prefer the views of the ‘expert’ government decision-makers to those o f the judge. For these reasons judges would generally prefer to fault the actions o f their fellow governors on procedural rather than substantive grounds. Although lawyers know no technological substance, they are themselves the experts on procedure. Procedural review puts the judge on the high ground o f expertise. For similar reasons judges will prefer to rest their invalidation o f rules on grounds of statutory interpretation rather than pure policy substance. It is better for a judge to say a rule fails because it is in conflict with the language o f the statute authorising the rule or the intent o f that statute than to say the rule fails because it is bad public policy. Here again the judge shifts the issue from one o f policy in which the other fellow is expert to one o f interpreting laws, where again the judge holds the high ground o f expertise. Besides these general considerations, we have already noted the peculiarly American one - that because o f the ‘arbitrary and capricious’ language of the APA, an American judge would have to call the rule-making agency a lunatic in order to strike down a rule on substantive grounds. Even after the New Deal coalition broke down, most American judges preferred to avoid such rudeness. The result was that when American judges jumped to a high level of intervention, they sought to avoid pure substantive review. On the other hand, pure procedural review would not have wholly served the judges’ purposes for two reasons. First in the crucial area o f rule-making, we have already noted that the APA imposed only very rudimentary procedures on the agencies. Secondly, after a court has struck down an agency’s rules a few times on narrowly procedural grounds, a technocratic agency will learn how to fix its formal procedures while persisting in making rules whose substance is dictated by the preferences o f the experts. Procedural judicial review ultimately may not so much check technocratic government as perfect it, disguising its self-serving policies in an impeccable procedural song and dance. So American judges moved in what might be called a meta-procedural direction. Very infrequently they engaged in pure substantive review, simply declaring that an agency-made rule was so unreasonable as to be arbitrary and capricious. More frequently they disguised substantive review in a finding that the rule at issue violated the intent o f the authorising statute. Whenever they could, the judges expressed their © Blackwell Publishers Ltd. 1996

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distaste for a rule by finding a purely procedural error. But the central thrust o f the new American administrative law is found in a whole set o f judicial demands that agency rule-making processes meet standards o f total transparency, complete participation and, ultimately, perfect rationality11. Such a set o f judicial demands is not quite as confrontational as are judicial findings that agency rules themselves are simply wrong. What American courts usually say to the agency is not ‘We reject this rule because it is wrong.’ Instead they say ‘We reject this rule because the decision-m aking process you employed in reaching it was not sufficiently open to public scrutiny, and/or was not adequately responsive to the various non-governmental groups and individuals who sought to participate in it, and/or did not exhibit sufficient thoroughness on your part in examining all the relevant facts, alternative policies and potential costs and benefits.’ Such a judicial response does not quite say ‘the rule is invalid because it is stupid’. In theory at least, the reviewing court might subsequently validate exactly the same rule it has now invalidated if the agency again arrived at the same rule but after going through the rule-making process again in a more perfect way. In that sense the court’s veto is suspensive rather than absolute as it is when the court invalidates a rule on the grounds that it is substantively unreasonable or is in conflict with its authorising statute. But it would be foolish to treat such a veto as ‘merely’ suspensive. Precisely because this variety o f judicial veto demands that the agencies engage in more and more perfect decision-m aking processes, it demands that each repetition o f such processes be more and more costly in terms o f agency decisional resources. The more participatory, transparent and rational an agency decision process must be, the longer it is going to take and the more agency effort has to be expended. When a court exercises this kind o f suspensive veto, it dooms the agency to months, or even years, of new exhaustive effort to achieve a new version o f a rule on which the agency has just spent months, or even years, o f exhaustive effort. If the vetoing judges express even a hint o f distaste for the substance o f the rule the court is overtly rejecting on meta-procedural grounds, it will be a brave agency indeed that will bring exactly the same rule back to court again after a second long, hard rule-making process. To do so creates the risk o f being told by the judges to do the whole thing over yet again. For no rule-making process is ever so perfect that the judges cannot find something wrong with it, particularly if they don’t like the substance o f the rule that has emerged. Thus major changes in American party politics, diffuse changes in American response to technology and technocracy, increased allegiance to democratic ideals o f public participation and transparency in public policy-making, and more narrowly focused dynamics of administrative law and judicial self-perception and strategy have combined to create a new American administrative law under the umbrella o f an APA whose wording has not changed.

V The New Administrative Law and Judicial Review It would take too long to provide even an outline o f the development o f this new 11 Compare M.

Shapiro, op cit n 11 with C. Sunstein, After the Rights Revolution (Harvard University Press, 1990) and C. Edley, Administrative Law: Rethinking Administrative Control o f Bureaucracy (Harvard University Press, 1990).

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jurisprudence, and such outlines are available elsewhere12. A brief summary is possible. It will be recalled that the APA provisions on rule-making required notice, agency acceptance of comments from the public, and a concise and general statement of the basis and purpose o f the rule. The agency was not required to create a record. The judicial review standard was one allowing the agency the broadest leeway. Judges were to strike down only rules that were so wrong they could be called arbitrary and capricious. Working from these statutory provisions the US Courts o f Appeals and particularly the Court of Appeals for the D.C. Circuit invented a whole new administrative law doctrine. Indeed they invented a new language which they used in preference to that of the statute. The courts insisted that rules be the product of ‘dialogue’ and ‘reasoned elaboration’ and that the courts and the agencies were engaged in a rule-making ‘partnership’. The judge invented a ‘rule-making record’ requirement that is quite contrary to the deliberate omission of such a requirement in the APA. The statement to accompany the rule is no longer concise or general, nor will a simple one-line notice that the agency is considering making a rule on a particular subject suffice. The agency’s notices, rule-making record and statement o f basis and purpose considered together must now show that at every step the agency has made known to the public the data and policy considerations shaping its rule-drafting decisions, has responded to every question and suggestion raised by the various interests concerned with the proposed rule and has demonstrated that, even on issues about which private parties have not raised objections or queries, it has considered every relevant fact and policy alternative. Far from having to demonstrate only that it has not been arbitrary and capricious, the agency must persuade the court that it has made the best rule that it possibly could. The rule-making process, which the APA intended to be quick, informal and largely insulated from judicial review, is now incredibly slow, formal and judicially supervised. Agencies spend much o f their effort trying to make their rules judicial review proof. Rule-making has become so tendentious that the agencies are now seeking ways to make policy without having to make a rule. On the positive side, agency rule-making processes have become about as transparent and participatory as they can be. Agency work product is far more careful and complete than it once was. Far more attention is now paid to unanticipated consequences, policy coordination, cross-cutting policy considerations, the distribution and disparities of costs and benefits among those on whom the rule has an impact and the range o f alternative regulatory steps that might achieve more benefits at lower costs. In short, the rule-making process is far more cumbersome but also far more rational than it once was. While I have stressed that these changes occurred by judicial fiat under an APA whose words had not changed, I do not wish to suggest that the courts acted in defiance of Congress in making these changes. The stream of Congressional health, 12 The classic article is Stewart, The Reformation of American Administrative Law’, (1975) 88 Harvard Law Rev. 1667-1813. See also M. Shapiro, Who Guards the Guardians: Judicial Control o f Administration (University of Georgia Press, 1988). K. C. Davis, Administrative Law Treatise (K. C. Davis, multiple volumes, frequently supplemented) provides exhaustive accounts of the changes. The current state of developments can be most easily seen in any of the one volume treatises such as B. Schwartz, Administrative Law (Little Brown) which appears frequently in new editions or case books such as G. Robinson, E. Gellhom and H. Bruff, Administrative Law (West Publishing Co.) which appear frequently in new editions and are supplemented annually. P. Schuck, Foundations o f Administrative Law (Oxford, 1994) is a recent collection of leading articles on the developments described here. © Blackwell Publishers Ltd. 1996

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safety and environmental statutes that flowed in the late 1960s, ’70s and ’80s gave many indications that Congress had noted and approved what the courts were doing. My basic point is not that courts acted idiosyncratically. Quite the contrary, courts were responding to the same anti-technocratic, democratic themes o f participation and transparency that were influencing all o f American politics during this period and were seeking to exercise the lay public control over bureaucrats that everyone desired.

VI Comparison With Europe All o f this may seem a very, very long wind-up before trying to relate American to European experience. The long wind-up, however, allows me to be quite brief in attacking the European aspect o f the subject. We can quickly say that the European Union now exhibits the following characteristics that are comparable to the American experience o f the last few decades. First, APA judicial review initially worked easily, in spite of its Republican, antiregulatory origins, because the judges and the bureaucrats were all New Dealers. As New Deal judges were supplemented and replaced by post-New Dealers, judicial review became more intrusive. In the European Union, the early corp o f judges was largely recruited from among persons enthusiastic about the growth o f the Community. The Court and the Commission were allies in the New Community Deal. Today the recruitment o f Union judges draws in few European visionaries. This generation of Union judges is very post-1960s in its attitude toward the Union. The Commission and the Court of Justice are no longer natural allies. Second, disillusion with technology is widespread in Europe as is well illustrated by the Green movement. And distrust o f technocracy is even more widespread, witness the avalanche o f criticism o f Brussels’ Eurocrats in the course o f the Maastricht referenda. Thirdly, to put the positive side, the desire for transparency and participation in government policy-making has clearly been growing in Europe as a whole. In Eastern Europe, the rejection o f Communism has as one o f its major features the rejection of rule by those claiming technocratic authority and a yearning for transparent govern­ ment. In Western Europe the central expression of the yearning for transparency and participation has occurred in the context o f the Union itself, but it can also be seen in the movements for regional autonomy in a number o f Western European nations. Rule by bureaucrats far away in the capital has become a European as well as an American target. The desire for transparency in government and the desirability o f non­ governmental organisations’ participation in national and international policy-making are now major themes in European political discourse. Fourthly, the APA, with its judicial review provisions, was passed against the background o f activist judicial review in constitutional law. Expectations about judicial review in administrative law were coloured by previous experience o f judicial activism in constitutional law. If the Union were now to acquire an APA with judicial review, that review would no longer be seen only in the context o f the rather modest review practices o f European national administrative law but also in the context o f the greater judicial activism o f post-World War II national constitutional courts and of the Court of Justice itself13. 13 Recent tendencies in European judicial review are examined in The Judicialization of Politics’ issue of the International Political Science Review , vol 15, no 2 (April 1994), and in ‘The New Constitutional of Europe’ issue of Comparative Political Studies, vol 26, no 3 (1994).

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A related point may be made about institutions. The APA choice o f review in the regular courts rather than special administrative courts was inevitable given the American tradition. Whether the codified administrative law of the Union should be accompanied by the creation o f separate administrative courts or, as with the uncodified administrative law o f the Union, come under the Court o f Justice and the Court o f First Instance, is presumably an open question. It is an open question, however, precisely because the Union, like the US, now has a unified court system in which administrative law matters are the province o f the ‘regular’ courts. The legal context o f Union codification is now much more like the American context than it would have been had an administrative code been considered in the earliest days of the Community. Finally, European and American experience converge on a dimension that I did not discuss much in my account o f American developments. In the US, administrative law has always been entangled with the politics o f regulation. The origin o f the APA was in opposition to the regulatory enthusiasm o f the New Deal. Its judicial review provisions were its key anti-regulatory feature, although judicial review was so entrenched in American legal experience that pro-regulatory forces could hardly oppose review. The key pro-regulatory features o f the APA lie in the distinction between adjudication and rule-making and in what the APA does not require for rulemaking. The rule-making provisions do not require that there be a record in a rulemaking proceeding or that the agency demonstrate that its rule has an adequate basis in fact and logic. And then the APA resorts to the least demanding judicial review standard known to the American legal tradition, the arbitrary and capricious standard. If a reviewing court had before it no record o f the facts and inferences on which an agency based its rule, how could that court ever do anything but what courts actually did do in the 1940s and ’50s; assume that the agency had the facts and analysis to support its rule. If such an assumption is made, then the rule can hardly be said to be arbitrary and capricious. If a court has nothing to review, then its formal power to review is rendered nugatory. When the courts o f the ’60s and ’70s began requiring agencies to compile a rule-making record, write a reasoned elaboration o f their rule rather than a concise and general statement, demonstrate that they had given reasons for rejecting each o f the points raised against the rule and considered all alternatives, the courts ‘boot strapped’ themselves into more active review. They forced the agencies to create a huge paper trail for every rule made. Free to roam along that paper trail, the judges could always find some impermissible gap in it if they wanted to. It might be assumed that this rapid increase in judicial review favoured and was favoured by the anti-regulatory forces that had pushed the APA in the ’30s and ’40s precisely because it would provide judicial restraints on bureaucratic discretion. In the changed situation o f the ’60s, ’70s and ’80s, however, both pro- and anti-regulatory forces were attracted by review. Indeed pro-regulatory environmental groups were among the most active and successful invokers o f review of rule-making and were largely responsible for pushing the courts into the great transformation of the administrative law o f rule-making that occurred. As we have already seen, the wave of American health, safety and environmental regulatory statutes o f the ’60s, ’70s and ’80s were enacted in a climate o f suspicion o f bureaucratic technocracy and so contained many ‘agency forcing’ and ‘technology forcing’ provisions. The judicial review provisions o f these statutes were envisaged as providing opportunities to goad a sluggish and reluctant bureaucracy into living up to the great ambitions o f the © Blackwell Publishers Ltd. 1996

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statutes. O f course anti-regulatory forces, essentially the regulated industries, used review to block or at least slow down what they viewed as overzealous new agency rules. Unlike the 1930s and ’40s, in the ’60s and ’70s judicial review was not a bone of contention between pro- and anti-regulatory forces. Both sides vigorously employed review Only in the 1980s did this situation change. By then a host o f health, safety and environmental statutes calling for high levels o f regulation were in place. By then many federal regulatory agencies had come to be dominated by technocrats favouring high levels o f regulation. Judicial review was still often used to push the agencies into higher levels o f regulation. Those favouring regulation, however, were now often in the position o f having won in Congress and won in staffing the agencies but seeing victories in policy implementation long delayed because o f rigorous judicial review of rules. In recent years it has been American pro-regulatory forces that have been interested in developing quicker alternatives to rule-making. The particulars may be different in Europe but the general entanglement o f administrative law and regulatory politics is the same. The histories o f the national administrative laws o f Europe were largely driven by two basic concerns, the internal needs o f the bureaucracy to discipline itself and a concern to protect individual property rights against arbitrary government incursions. The question o f an administrative law for the European Union arises in the very specific context o f the movement o f regulatory regimes from national capitals to Brussels. Interest in codification, in ‘independent agencies’, etc. is not purely academic. It is not simply a matter o f ‘Now that we have the Union, o f course we must have an administrative law for it just as we do for the nation-states.’ Some academics may naively view what they are doing as an exercise in comparative administrative law that is designed simply to fill a gap in the legal regime o f the Union as if the task o f law professors, like mountain climbers, is to respond to a challenge just ‘because it is there’. But what really pushes concerns to develop an administrative law for the Union is regulatory politics. The origins o f the European Community certainly do not lie in deregulatory motivations per se. But deregulation has certainly been a major motivation o f the Single A ct14. And suspicion o f Brussels regulators has certainly been central to the Maastricht and post-Maastricht controversies. It is not a coincidence, or a mere next step in the building process, that European lawyers are now so concerned about Union administrative law. Nor is it merely scholarly curiosity that has led Europeans to their recent interest in American administrative law which has as its principal theme judicial restraints on bureaucratic technocracy. The shift o f regulation to Brussels at the very time that free-market ideology and the globalisation o f markets makes regulation itself problematic is the context o f European concerns with making an administrative law for the Union. It is that context that inspires European interest in American experience. It is that context that necessarily will determine European developments. As in the US, the new administrative law for the European Union is very much about the location and intensity o f regulatory authority. My general line o f argument now runs as follows. Certain forces that operated more strongly and earlier in the United States are now growing in Europe. These include 14 See

Dehousse, The Institutional Dimension of the Internal Market Programme’ (European University Institute, 1989); Shapiro, ‘Federalism, Free Movement and the Regulation-Averse Entrepreneur’, in H. Scheiber (ed), North American and Comparative Federalism (University of California, Berkeley Institute of Governmental Studies Press, 1992).

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constitutional judicial review, conflicting regulatory and deregulatory sentiments, fear o f technology and technocracy and, most importantly, calls for transparency and public participation in the policy-making process. Resting on this parallelism alone, one would expect to see European administrative law now moving in the direction o f more active judicial review just as that of the US did earlier. As in the US such ‘metaprocedural’ judicial review would allow European Union judges to avoid direct confrontation on substantive policy issues with other organs o f government while also increasing their influence in the policy process. Because they are not entangled in partisan two-party politics as they were in the United States, however, such changes in European administrative law may well be less abrupt than they were in the US. The direction of European change is easier to predict than the speed of change. A second and reinforcing element exists in this argument. The Union faces the ‘American’ forces faced by Europe in general but experiences them more strongly for a number of reasons. Regulation versus deregulation is even more central to the politics o f the Union than to the politics o f each o f its Member States. The movement o f regulatory authority from Member State capitals to Brussels accelerates the fear of technocracy and the desire for transparency and participation both among the people and the national economic elites. The key lies in the elites. Accustomed to a style o f national regulation in which business elites and government technocrats formed an intimate ‘in group’ which negotiated mutually satisfactory regulatory compromises, the regulated firms now face a more distanced, less intimate regulation from Brussels in which national business leaders are less ‘in’. If you are ‘in’, you do not concern yourself with participation and transparency, that is to the interests o f the ‘outs’. Indeed you are likely to oppose them. But if you are beginning to feel ‘ou t’, participation and transparency suddenly seem more attractive. Just as the regulated elites now support a large lobbying industry in Brussels15 (if you are ‘in’ you do your own lobbying - if you are ‘out’ you have to pay someone else to do it), they are likely to support an administrative law that opens up regulatory decision-making to outside influences. Moreover, it is far easier to push for an American style ‘reformation’ of administrative law in the context o f the Union than in national contexts because at the Union level we are doing ‘formation’ not ‘reformation’. Unlike its Member States, the Union has no great weight of administrative law tradition that it must lever to a new position. To be sure, it must, o f necessity, work with the materials of the national traditions, but it is clearly a new law that must be created for a new set of institutions beyond traditional conceptions of the ‘state’. Indeed it is the novel institutional arrangements o f the Union as much as its distance and its newness that provide an especially fertile field for Americanisation. The Union has a single court system doing constitutional, administrative and ‘regular’ court work. On the one hand, the two Union courts do not experience the intimate alliance between administration and reviewer o f administration that characterises judicial systems in which there are separate administrative courts. On the other, the Court of Justice does enjoy that extra surge of self-confidence that comes from being a successful constitutional court. The effects of this unified jurisdiction are magnified by the unified nature of Union law itself. Whenever the Court o f Justice, or for that matter the Court o f First Instance, hears a challenge to a Commission action, it is operating simultaneously in 15 S.

Mazey and J. Richardson (eds), Lobbying in the European

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(Oxford, 1993).

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constitutional and administrative law. All this is not to deny that a careful distinction between administrative law and constitutional law could now be introduced into Union law, and a special place afforded to ‘supplementary legislation’ by the Commission or the comitology process. It is to say that because all norms enacted by the Commission or Council are subject to judicial review to determine whether they are in accord with the ‘constitution’ o f the Union, the Court o f Justice is engaged in validating or invalidating whole Commission regulations, not simply their particular applications and, as with the US Supreme Court, is likely to find analogies between its already well-established activist constitutional review and its growing administrative review. This phenomenon is most clearly seen in one of the few, firm, existing bits o f Union administrative law, the giving reasons requirement. The giving reasons requirement of Article 190 makes no distinction between primary and supplementary legislation or between Commission and Council enactments. When the Court o f Justice voids some Commission decision because adequate reasons were not given, no distinction is, therefore, made between administrative and constitutional law. The decision, no matter how particular or how general, is void both as a decision and in its particular application. The giving reasons requirement is part o f Union administrative law. It is also a constitutional rule that can be employed by the Court to invalidate any Union action from the broadest statute to the narrowest, individual application.

VII Article 190 as a Test of Convergence Precisely because o f these features o f Article 190 it seems like an interesting laboratory for some quasi-experimental validation o f the hypothesis I am offering here. The general hypothesis is, o f course, that Union administrative law is likely to move in the directions that American administrative law did in the 1960s, ’70s and ’80s because it is now subject to the same forces that American law was then. The APA o f 1946 contained a general giving reasons requirement, the provision for a concise and general statement o f basis and purpose to accompany a rule. The particular hypothesis to be tested then runs as follows: Given that the American reasons requirement was initially very undemanding but eventually yielded an extremely activist judicial review that made great demands for participation and transparency on the rule-making agencies, we should expect Union courts to grow more activist in enforcing Article 190 on Union decision-making. I have run this ‘experiment’ with, I believe, some success in confirming the hypothesis. The experiment and its results are reported elsewhere16. Briefly, it predicts that the Court of Justice will diverge from its long-held precedents and impose more demanding giving reasons requirements on the Commission. Between the time the paper was originally written and its publication, both the Court of Justice and the Court of First Instance issued opinions of a more or less American ‘dialogue’ style. They required that Union organs respond more completely to points made by those opposing a proposed action than the judges had previously required Union organs to do. It is particularly noteworthy that in doing so the Court o f Justice came as close as a civil law court ever does to openly reversing a long-standing line o f cases. O f course, 16 Shapiro,

The Giving Reasons Requirement in European Community Law’, (1992) 179-220.

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in the nature o f things, the experiment is hardly conclusive. As always with new case doctrine, it remains to be seen whether these cases are real turning points or mere aberrations. Certainly neither court has moved all the way to the American position that the agency must respond to every point raised by every interested party. But both courts do seem to be saying that they will exercise an independent judgment about whether Community organs have been transparent enough and responsive enough to outside participation. In any event, the experiment seems to have been successful enough to justify continuing to pursue the hypothesis.

V m An Addendum on Supplementary Legislation If I may return to a point I made initially, from the American perspective European administrative law has been pretty much an uninteresting side-show devoted to making sure that the army o f bureaucrats dresses its ranks properly and keeps its equipment clean. The real action in American administrative law lies in judicial supervision not o f the details o f implementation but o f major technocratic policy­ making through supplementary law-making. It is judicial review o f the rules themselves, often in pre-enforcement review proceedings, not the review of particular applications, that expresses American energies. And so for Americans the most interesting question of codification o f Union administrative law is whether the unique legal and institutional situation o f the Union can or should lead to active judicial review o f the rules and regulations engendered by the administrative organ o f the Union, the Commission, whether such review is labelled administrative or constitutional or not labelled at all. Does the urge toward codification provide the occasion for working out institutions, procedures and doctrines o f supplementary law-making and judicial review o f such law-making for the Union? The most obvious answer is that the Union already has a far better way o f checking technocratic policy-making than a system o f supplementary law-making subject to judicial review. Every Commission initiative is supervised by the Council and cannot become legally binding until the Council enacts that initiative as law. The Council does better than delegating its legislative powers and then depending on the courts to ensure that those engaged in delegated legislation follow the will of the delegator. Instead the Council does not delegate its law-making powers but exercises all its legislative powers itself. N o principal agent problem arises because the principal retains all power himself. Two real world phenomena interfere with this picture o f non-delegation. Both are related to the increasing volume o f Commission responsibilities as the web of Union regulation becomes more and more fine-spun. As Commission initiatives increase in number and in technical detail, Council ‘enactment’ becomes more and more either a fiction or another episode o f technocracy. That is, either the actual political members of the Council come to rubber stamp the flow of Commission initiatives they cannot understand or keep up with or the Council sets its own technocratic staff to check on the Commission technocrats. Either way, popular or lay control over technocrats tends to be eroded. Secondly, the volume of regulatory decisions tends to get so high and so particularised that it is simply impossible for the Council to enact them all. The Commission begins to invent ways of announcing regulatory policies that effectively constrain the regulated but do not require Council enactment. Where the Commission carefully crafts a stable pattern o f ‘administrative’ implementations, that pattern may constitute a new or modified rule but not one that the Council need enact. © Blackwell Publishers Ltd. 1996

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That the Union has now entered the stage at which large amounts o f sub-legislation will be necessary is shown by the new process in which the Council does delegate supplementary law-making authority to the comitology process. While in theory each piece o f delegated comitological rule-making must subsequently be approved by the Council, it remains to be seen whether this formal mechanism will really work. A codification project for the Union seems an appropriate occasion for considering whether the Union ought to establish a formal system o f supplementary or delegated legislation with or without judicial or some other sort o f review to deal with the problem o f whether the delegatee is acting lawfully under the delegating legislation. IX

Conclusion

Thus, from the American perspective, a debate about the codification o f Union administrative law will be something more than an episode o f the compulsive neatness for which European legal scholarship is famous. Such a debate will necessarily be about levels o f judicial supervision o f technocratic government and levels o f transparency and outside participation in bureaucratic decision-making. Such a debate is both engendered by forces previously felt in the US and should be informed by American experience with what began as a pro- and anti-regulation compromise and grew into a largely new and unanticipated administrative law that maximised participation, transparency and judicial supervision of key administrative action. In general then American experience suggests two basic, inter-related problems worth considering for those concerned with the codification o f Union administrative law. The first is the general intensity o f judicial review. To what extent is it possible, inevitable or desirable that judicial review o f administration become a vehicle for the introduction o f more elements o f democratic transparency and participation into bureaucratic, technocratic decision-making? Secondly, should administrative law be written small or large? That is, should administrative law and judicial review stick to questions o f whether a rule has been properly applied in a particular instance? Or should administrative law and judicial review, whether under the ‘constitutional’ guise o f enforcing Article 190 and others on the Commission, or the more purely administrative law guise o f an acknowledged system o f delegated legislation, also consider whether the rules themselves are lawful? The more Union codification programmes address themselves to the question of judicial power to invalidate rules the more interesting they become to Americans and, far more importantly, the more relevant they become to the major institutional and policy concerns o f the Union. The more such programmes confine themselves to judicial invalidation o f particularised implementations o f rules, the more they become purely academic exercises in comparative law. If this latter approach is taken, then the real action will occur not in something labelled ‘administrative law’ but in something labelled ‘constitutional law’, defined as encompassing the power o f Union courts to invalidate Union rules on the grounds that they are in conflict with the treaties or constitutional instruments o f the Union.

Bibliography ‘The New Constitutional Politics of Europe’, (1994) Comparative Political Studies, vol 26, no 3 K. C. Davis, Administrative Law Treatise (multiple volumes, frequently supplemented)

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Dehousse, ‘The Institutional Dimension of the Internal Market Programme’, European University Institute, 1989 A. V. Dicey, Introduction to the Law o f the Constitution (Macmillan, 4th ed, 1893) C. Edley, Administrative Law: Rethinking Administrative Control o f Bureaucracy (Harvard University Press, 1990) The Judicialization of Politics’, (1994) International Political Science Review , vol 15, no 2 S. Mazey and J. Richardson (eds), Lobbying in the European Community (Oxford, 1993) G. Robinson, E. Gellhorn and H. BrufT, A dm inistrative Law (West Publishing Co., periodic new editions, annual supplements) P. Schuck, Foundations o f Administrative Law (Oxford, 1994) B. Schwartz, Administrative Law (Little Brown, periodic new editions and supplements) J. Schwarze, European Administrative Law (Sweet and Maxwell, 1992) Shapiro, ‘Judicial Activism’, in S. M. Lipset (ed), The Third Century (Hoover Institution Press, 1979) M. Shapiro, Who Guards the Guardians (University of Georgia Press, 1988) Shapiro, ‘Federalism, Free Movement and the Regulation-Averse Entrepreneur’, in H. Scheiber (ed), North Am erican and Com parative Federalism (University of California, Berkeley Institute of Governmental Studies Press, 1992) Shapiro, The Giving Reasons Requirement in European Community Law’, (1992) University o f Chicago Legal Forum 179 Stewart, The Reformation of American Administrative Law’, (1975) 88 Harvard L aw Rev. 1667 G. Teubner and A. Febbrajo (eds) State, Law and Economy A s A utopoietic System s: European Yearbook o f the Sociology o f Law (Guiffre, 1991-92) The Administrative Procedures Act: A Fortieth Anniversary Symposium’, (1986) Virginia Law Review , vol 72

© Blackwell Publishers Ltd. 1996

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[8]

Judicial review and codification Timothy H Jones

Professor of Public Law, University of Wales Swansea

This article addresses the potential advantages and disadvantages of codifying the grounds of judicial review of administrative action. The four principal legal values associated with codification are described: certainty; clarity; democratic legitimacy; and rationality. The extent to which codification might further these values is considered in the light of two comparative models: the United States Administrative Procedure Act 1946 and the Australian Administrative Decisions (Judicial Review) Act 1977 (Cth). It is concluded that codification offers no solution to the practical and theoretical problems of judicial review. Codification places the content of the principles ofjudicial review in the hands of politicians. Australian legislation limiting the grounds of review available in migration cases shows the danger to the separation of powers inherent in codification. If it is thought desirable to foster the further development of the principles ofjudicial review, this can best be achieved by leaving the task to the judiciary.

I

INTRODUCTION

A recurrent theme in reformist writing on administrative law is that o f the desirability o f codifying the grounds o f judicial review . 1 The benefits o f such a m ove som etim es appear to be regarded as self-evid en t . 2 The argument for restating the principles o f judicial review in statutory form will invariably be supported by a reference to the example o f codification in Australia, under the Administrative D ecisions (Judicial Review) Act 1977 (Cth ) . 3 The aim o f this article is to examine critically the validity o f the arguments deployed in support o f codification. A particular question is whether the Australian experience provides a useful model to be adopted in England and W ales .4

1. See eg J Goudie ‘Judicial Review’ in D Bean (ed) Law Reform for All (London: Blackstone, 1996) pp 134-138; and the works cited in nn 2-3, below. 2. See eg A Bradley ‘The Need for Legislative Intervention’ (1991) 141 NLJ389at390. 3. See Bradley, above n 2; JUSTICE/A11 Souls Administrative Justice. Some Necessary Reforms (Oxford: Clarendon, 1988) paras 6.33-6.34. N Lewis and P Birkinshaw When Citizens Complain. Reforming Justice and Administration (Buckingham: Open University Press, 1993), despite their unbounded enthusiasm for matters Australian, are ambiguous on this point (at p 213). M Partington ‘The Reform of Public Law in Britain: Theoretical Problems and Practical Considerations’ in P McAuslan and J F McEldowney (eds) Law, Legitimacy and the Constitution (London: Sweet & Maxwell, 1986) pp 191-211, whilst also reporting favourably on the condition of administrative law in Australia, falls short of advocating codification. 4. Much of what is said is relevant to the other jurisdictions within the British Isles, but given the different procedural and remedial frameworks which exist, the present article is limited in its territorial scope.

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518 Legal Studies Some explanation is necessary o f the way in which the term ‘codification’ is used in this article. ‘Code’ is not being used in the rationalist sense o f ‘a logically or empirically com plete ’ 5 statute which is prevalent in civil law jurisdictions .6 It should not be equated with what Friedrich Karl von Savigny described as, ‘not one amongst other legal authorities, but that all others which have been hitherto in force, shall be in force no longer ’ .7 Codification refers, rather, to the Anglo-American technique o f consolidating in statutory form a body o f law which has been developed by the judiciary. It does not necessarily exclude the possibility o f continuing and significant judicial development o f the law. Very different philosophies o f judicial review are com patible with codification. The point can be illustrated simply by comparing two essays included in collections which put forward law reform proposals for a future Labour government.8 The first contribution dates from 1983.910 Professor John Griffith argues in favour o f codification because he sees it as a mechanism to control the excessive judicial discretion inherent in the common law principles. From his viewpoint, the ‘problem’ o f judicial review is that the judiciary has leew ay to apply its own values above those o f the elected legislature. He maintains that the judiciary is ‘more likely than not to introduce inconsistency and injustice into complex areas o f administration’ . ,0 Griffith proposes to remove the possibility o f judicial review on ‘non-statutory grounds’, such as unreasonableness and irrelevant considerations . 11 He would restrict the available grounds of judicial review to: ultra vires in the ‘narrow sense’ o f acting outside the empowering statute; compliance with ‘rules o f procedure laid down or under statute in accordance with natural justice’; and bad faith or corruption . 12 The second essay was published in 1996.13 In contrast to Griffith, James Goudie QC, far from questioning the legitimacy o f judicial review, wishes to bring greater clarity and accessibility to the law. In this regard, the case for codification is perhaps a natural extension o f the argument that the judiciary themselves should identify the ‘substantive principles’ underpinning the more amorphous o f the common law grounds o f review . 14 It can be seen as part o f the broader intellectual project which seeks rational legal principles to replace the traditional reliance

5. M Shapiro ‘Codification of Administrative Law: The US and the Union’ (1996) 2 European LJ 26 at 29. 6. See M John Politics and the Law in Late Nineteenth-Century Germany. The Origins of the Civil Code (Oxford: Clarendon, 1989). 7. F K von Savigny Of the Vocation of Our Age for Legislation and Jurisprudence (New York: Amo Press, 1975; reprint of 1831 translation by A Hayward) pp 33-34. 8. The comparison also shows how much attitudes within the Labour Party have changed. On which, see also K D Ewing ‘The Human Rights Act and Parliamentary Democracy’ (1999) 62 MLR 79 at 98-99. 9. J Griffith ‘Constitutional and Administrative Law’ in P Archer and A Martin (eds) More Law Reform Now: A Collection of Essays on Law Reform (Chichester: Rose, 1983) pp 49-66. 10. Above n 9, p 57. 11. Above n 9, p 58. 12. Above n 9, pp 58-59. 13. Goudie, above n 1 . 14. J Jowell and A Lester ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ [1987] PL 368.

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Judicial review and codification 519 upon the empiricism o f the common law. Goudie goes further, however, and his suggested scheme o f codification would broaden the available grounds o f judicial review, in such a way as might actually increase judicial discretion . 15 Goudie and Griffith are representative o f entirely different outlooks on judicial review, yet both can argue in favour o f codification. Of course, the content o f their proposals is quite different: one is facilitative o f judicial review; the other seeks to restrict the grounds upon which it is available. But - to anticipate the subsequent argument so m ew h a t-o n ce the grounds o f judicial review have been placed in the hands o f Parliament (and the controlling government), a facilitative statute can become a restrictive one . 16 Anthony Bradley, for example, argues in favour o f codification along Australian lines. In his very next sentence, however, he notes the ‘continuing danger that a supreme Parliament will seek to exclude or narrow judicial review ’ . 17 It is surprising that no connection is seen between the two. More cautious - if equally reformist - voices can also be heard (most notably that o f the Lord Chief Justice, Lord W oolf), urging that the loss o f flexibility inherent in the common law o f judicial review would be too high a price to pay for the greater clarity that would come with codification . 18 This is the position adopted by the Law Commission, which believes that ‘the substantive grounds for judicial review . . . should be the subject o f judicial development ’ . 19 No doubt apprehension about the effects o f putting the grounds o f judicial review in statutory form is based in part upon the problems perceived to have attended the application and interpretation o f RSC Ord 5320 and s 31 o f the Supreme Court Act 1981, which consolidated the procedural aspects o f judicial review. These provisions have generated a large amount o f case law concerned purely with procedural issues, unrelated to the substantive justice o f the cases under consideration. The fear would be that codification o f the grounds of judicial review might lead to the same difficulties. There is reason to suggest, however, that the parallel with codification o f the grounds o f judicial review is an imprecise one. The relevant provisions are by no means a code o f judicial review procedure. Carol Harlow has pointed out that the 1981 Act ‘leaves the judges to construe two texts which cover the same ground but are not identical’ .21 The problems are caused by the failure to rationalise the relevant provisions, not the result of placing them in statutory form. 15. See, inter alia, his suggestion that ‘untenable conclusion of fact’ be included as a ground of judicial review (Goudie, above n 1, p 136). 16. This process can also be the result of judicial decision; some would argue that this was the effect of O'Reilly v Mackman [1983] 2 AC 237. 17. Bradley, above n 2, p 390. 18. Sir Harry Woolf Protection of the Public - A New Challenge (London: Stevens & Sons, 1990) p 32. See also J Jowell and P Birkinshaw ‘English Report’ in J Schwarze (ed) Administrative Law under European Influence (London: Sweet & Maxwell, 1996) pp 273-332, at p 331: ‘One would not wish to kill the inspiration of the common law at its creative best.’ 19. Law Commission Administrative Law: Judicial Review and Statutory Appeals (Consultation Paper No 126, 1993) p 1. 20. Now re-enacted in the Civil Procedure Rules, Appendix 1. 21. C Harlow ‘Codification of Administrative Procedures? Fitting the Foot to the Shoe or the Shoe to the Foot’ (1996) 2 European LJ 3 at 10, citing R v Dairy»Products Tribunal, exp Caswell [1990] 2 AC 738.

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THE ARGUMENTS FOR CODIFICATION

A range o f arguments can be employed in favour o f codifying the grounds of judicial review. The first concerns the issue o f legal certainty, which has not been a consistent feature o f the common law grounds o f review. The complaint has been made in relation to concepts such as ‘unreasonableness ’ 22 and ‘procedural fairness ’ .23 These have been criticised as being both opaque and m alleable. An extrem e exam ple o f legal uncertainty is provided by the ‘innom inate’ ground o f review , discerned by Lord D onaldson MR, where som ething ‘had gone wrong o f a nature and degree w hich required the intervention o f the Court’ .24 Codification, it is felt, would provide a w elcom e opportunity to bring a degree o f certainty to the law. One possible advantage might be the emergence o f ‘a discrete jurisprudence for each ground ’ 25 o f judicial review set out in the statute. The extreme version of the certainty argument is that put forward by Griffith. A s previously m entioned, he w ould w ish considerably to restrict the scope o f judicial review and demands ‘more positive, black-letter provision by statute ’ .26 He shows a rather surprising faith in the determinacy o f statutory provisions and their ability to limit the judicial role .27 A closely related argument is that codification would present an opportunity to bring greater clarity to the law. This could have advantages in terms o f the accessibility o f the law and serve an educative function for both administrators and the public, fostering greater awareness o f the applicable body o f law. Diana Woodhouse has written: ‘The codification o f the grounds of review . . . has been portrayed as having an advantage not only for those wishing to make applications for judicial review but also for those engaged in public administration. It provides a much clearer indication than previously o f the challenges that can be made to administrative decisions and thus som e guidance as to the principles administrators should follow . ’ 28 Codification, therefore, has presentational advantages which might make the law more understandable to the administrator or member o f the public who is not legally trained.29 A third argument concerns the issue o f democratic legitimacy. The judiciary has scant positive legislative authority for judicial review. The relevant procedural

22. Jowell and Lester, above, n 14. 23. C Harlow and R Rawlings Law and Administration (London: Butterworths, 2nd edn, 1997) ch 15. 24. R v Take-over Panel, ex p Guinness pic [1990] 1 QB146 at 160. This ‘innominate ground’ was described as ‘an amalgam’ of Lord Diplock’s GCHQ principles, ‘with perhaps added elements’ (per Lord Donaldson MR, [1990] 1 QB146 at 160). 25. R Creyke ‘Introduction and Overview’ (1996) 24 Federal LR 221 at 225. 26. Griffith, above n 9, p 58. 27. Contrast M Tushnet ‘Defending the Indeterminacy Thesis’ (1996) 16 Quinnipiac LR 339 at 351. 28. D Woodhouse In Pursuit of Good Administration. Ministers, Civil Servants and Judges (Oxford: Clarendon, 1997) p 201. She is writing here in the context of the Administrative Decisions (Judicial Review) Act 1977 (Cth). 29. LJ Curtis ‘Judicial Review of Administrative Acts’ (1979) 53 Australian LJ 530 at 531.

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Judicial review and codification 521 provisions30 are drafted negatively in terms o f detriment to good administration, rather than empowering the courts to enforce judge-made principles of good administration.31 The argument from democracy would be that setting the legal principles to be applied in judicial review proceedings should be the function o f the legislature. The point has been made by Paul Verkuil: ‘In a democratic state especially one that espouses parliamentary rather than judicial supremacy - the legislature properly should stake out the standards o f judicial review . ’ 32 Griffith makes a similar argument when he seeks a re-assertion o f parliamentary supremacy through codification and ‘a form of words which will positively state the grounds on which judicial control may properly be exercised ’ .33 His wish is to limit ‘the power which judges have taken to them selves ’ .34 Codification would establish the legitimacy o f judicial review in terms o f the prevailing constitutional theory o f parliamentary sovereignty, providing an authoritative source for judicial activities in this sphere. This might be a more satisfactory approach than that which maintains that Parliament is sovereign because it can always overrule judicial decisions, only to cry foul when this power is exercised. The final argument is one of rationality. The common law of judicial review grows through the exploration o f the boundaries o f legal principles case by case. This process o f development is dependent upon there being an applicant with both sufficient interest and resources to pursue the matter. Codification presents the opportunity to rationalise and reform the existing principles o f judicial review. As Roderick Macdonald has noted, even when a codification takes the form o f a restatement o f the existing law, ‘its motivation is always more than mere form’: ‘Substantive improvement o f the law, or at a minimum, the purging o f obsolescence and confusion, is never far from the surface in any codification debate . ’ 35 In the absence o f legislative inactivity, the code itself could be amended to take account o f future developments. Alternatively, it could be drafted in such a way as to allow for judicial elaboration o f the grounds o f judicial review.

Ill

METHODS OF CODIFICATION

Any practitioner or professor o f adm inistrative law could write down the principal grounds o f judicial review on the back o f an en velop e. Som e codification proposals seem to amount to little more. The subject deserves rather greater consideration than this. The key issue is that o f the specificity with which the grounds o f judicial review are set out in the codifying statute. In his masterful restatement o f the relevant principles in the GCHQ case, Lord Diplock referred to illegality, procedural impropriety, irrationality and (for future development) proportionality .36 An authorising statute could identify broad principles o f this

30. Supreme Court Act 1981, s 31; RSC Ord 53. 31. Woodhouse, above, n 28, pp 227-228. 32. P Verkuil ‘Crosscurrents in Anglo-American Administrative Law’ (1986) 27 William and Mary LR 685 at 708. 33. Griffith, above n 9, p 59. 34. Above n 9, p 59. 35. R A Macdonald ‘Recommissioning Law Reform’ (1997) 35 Alberta LR 831 at 835 (citations omitted). 36. Council of Civil Service Unions v Ministerfor the Civil Service [1985] AC 374 at 410.

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522 Legal Studies type and no more. The Administrative Procedure Act 1946 o f the United States (discussed below) was drafted in this style. This model o f codification does not go far towards em bracing the values which have been associated with codification. At a superficial level it may meet the demand for democratic legitimacy, but in its operation it depends greatly upon judicial elaboration o f the general principles. The law may be more rational and certain, but the educative function is not greatly furthered. It would be no great advance on the common law merely to place Lord D iplock’s principles in statutory form. It would make the law no more accessible than looking at the table o f contents of a standard treatise on judicial review. Needless to say, this method o f restating the grounds o f judicial review would not satisfy those who would wish to constrain judicial discretion by means o f codification. The second broad style o f codification is that which seeks to set out in some detail the available grounds o f judicial review. The Australian Administrative Decisions (Judicial Review) Act 1977 (Cth) is a statute of this type. It sets out as many as 18 different heads o f review, without being exhaustive .37 In fact, as is discussed below, this statute is som ething o f an unhappy combination o f general and more specific provisions .38 This is probably inevitable. The grounds o f judicial review do not exist outside o f judicial decisions; they cannot be reinvented by the legislature. All a statute can achieve is some clarification or limitation o f the existing common law. In contrast to the first kind o f codification, one might expect the educative function to be rather better served. Identifying the grounds o f judicial review with greater specificity should also serve to foster legal certainty and rationality, although the Australian experience suggests that rather less may be delivered than is promised. It is this kind o f statute which would have to be used if it were sought to limit judicial discretion, although it is an open question whether rules can have the desired effect o f limiting judicial creativity.

(a)

Administrative Procedure Act 1946

This Act o f the United States C ongress can be regarded as the last major legislative component o f the N ew Deal, delayed somewhat in its passage by the Second World War.39 The statute represents a compromise between the New Dealers and their Republican opponents. It is a blend o f codification o f existing com m on and statutory law with new legal standards to be enforced by the courts .40 A degree o f ambiguity in the legislation is therefore only to be expected. Indeed, during its passage, both parties sought to create a congressional record which would support their respective positions :41 faith in administrative expertise 37. The addition is attributable to J McMillan ‘Recent Themes in Judicial Review of Federal Administrative Action’ (1996) 24 Federal LR 347 at 384. 38. See Electoral and Administrative Review Commission Report on Review of Administrative Actions and Decisions (Brisbane 1990) paras 5.39-5.43. 39. See, generally, W Gellhom The Administrative Procedure Act: The Beginnings’ (1986) 72 Virginia LR219. 40. Note The Federal Administrative Procedure Act: Codification or Reform?’ (1947) 56 Yale LJ 670 at 673. 41. G B Shepherd ‘Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics’ (1996) 90 Northwestern Univ LR 1557 at 1682-1683.

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Judicial review and codification 523 on the Democrat side; and a Republican wish to empower the judiciary to curb excessive administrative discretion. The scope o f judicial review is defined in general terms by s 10(e) o f the Act ,42 which provides (in part): ‘So far as necessary to decision and where presented the reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions found to be ( 1 ) arbitrary, capricious, an abuse o f discretion, or otherwise not in accordance with law; ( 2 ) contrary to constitutional right, power, privilege, or immunity; (3) in excess o f statutory jurisdiction, authority, or limitations, or short o f statutory right; (4) without observance o f procedure required by law; (5) unsupported by substantial evidence . . .; or ( 6 ) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.’ The language is general, setting out the ‘principles ’ 43 o f judicial review. The statute does not - and could not - settle the id eological disputes which accompanied its gestation. Consider the provision which directs a court to set aside an administrative decision if unsupported by ‘substantial evidence’. It raises an obvious question: how much evid en ce is ‘substantial’ enough to ‘support’ a finding o f fact by an administrator? The Act gives no guidance. The general principle had already been established by judicial decision .44 Limited quantitative review o f the evidence by a court had been encouraged as necessary to uphold the rule o f law. The question whether findings o f fact had an adequate evidentiary basis had been treated as one o f law. There would otherwise be the risk, ‘that where the rights depended upon facts, the [decision-maker] could disregard all rules o f evidence, and capriciously make findings by administrative fiat ’ .45 There was substantial evidence in support o f a finding o f fact when an inference o f the existence o f the fact could reasonably be drawn: ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . ’ 46 If there was such an evidential basis, the reviewing court must uphold the finding, even though it might have reached a different conclusion itse lf . 4748 The substantial evid en ce test should be o f the rationality or reasonableness o f a decision, not its correctness in the view o f the court. The court should not reverse an administrative decision if a reasonable person would have determined the matter in the same way. In essence, this is the same legal test applied by a federal appeal court when reviewing the findings o f a jury. In a recent decision, Allentown Mack Sales v NLRB,4* the Supreme Court expressly

42. The contemporary citation for this section is 5 USCA s 706. 43. Attorney-General ’s Manual on the Administrative Procedure Act (Washington, DC, 1947) p 107. 44. Consolidated Edison Co v NLRB 305 US 197 (1938); NLRB v Remington Rand 94 F2d 862 (1938). Many of the leading authorities concern the use of the substantial evidence standard in labour relations legislation, but they are regarded as of wider application. 45. ICC v Louisville & NRR 227 US 88 at 91 (1913). 46. Richardson v Perales 402 US 389 at 401 (1971); Consolidated Edison Co v NLRB 305 US 197 at 229(1938). 47. Stork Restaurant Inc v Boland 282 NY 256 ( 1940). 48. 522 US 359 (1998); 193 L Ed 2d 797.

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524 Legal Studies equated the substantial evidence standard with the power to review the verdict o f a jury. Justice Scalia explains that the test applied by the court ‘gives the agency the benefit o f the doubt, since it requires not the degree o f evidence which satisfies the court, but merely the degree that could satisfy a reasonable fact­ finder ’ .49 The substantial evidence standard is thus not necessarily a doctrine o f intensive judicial scrutiny. The Attorney General maintained that the 1946 Act effected ‘a general codification o f the substantial evidence rule which, either by statute or judicial rule, has long been applied to the review o f Federal administrative action ’ .50 Conservative rivals nevertheless suggested that this provision fundamentally expanded the existing scope o f judicial review . 51 They saw the substantial evidence standard ‘as the keystone o f expanded controls ’ 52 on administrative agencies. An ambiguous statute was the price o f political compromise. George Shepherd writes that: ‘specific abandonment o f conservatives’ longstanding demand for broad judicial review under the substantial evidence standard would have embarrassed conservatives. Instead, the parties intentionally included ambiguous provisions that courts would later interpret. Each party then hoped that the courts would resolve the ambiguities in the party’s favour . ’ 53 Contemporary commentators were alert to the fact that the meaning and effect o f the Administrative Procedure Act would depend crucially upon the judiciary .54 This has proved to be the case. The codified grounds o f judicial review including the substantial evidence standard - have retained the malleability o f judge-made law and the meaning attributed to them has evolved over the past half-century . 55 Codification did nothing to settle the controversy over the appropriate scope o f judicial review; rather, it set the boundaries within which future disputes would take place. Administrative law in the United States remains largely the result of judicial development .56 Most crucially, perhaps, the intensity of review under the general provisions o f the Administrative Procedure Act (and equivalent state legislation57) depends upon the approach and philosophy o f the reviewing court.58 This is something which changes over time, even though the statutory language remains the same.

49. 193 L Ed 2d at 816. 50. Attorney-General’s Manual, above n 43, p 109. 51. See eg J Dickinson ‘Administrative Procedure Act: Scope and Grounds of Broadened Judicial Review’ (1947) 33 Am BAJ 434, 516. 52. Shepherd, above n 41, p 1665. 53. Above n 41, p 1665. 54. See eg J Cohen ‘Legislative Injustice and the Supremacy “of Law”’ (1947) 26 Nebraska LR 323 at 345. 55. See Allentown Mack Sales v NLRB 522 US 359 (1998); Universal Camera Corp v NLRB 340 US 474(1951). 56. See KC Davis ‘Administrative Common Law and the Vermont Yankee Opinion’ [1980] Utah LR 3 at 3-4. 57. See the Revised Model State Administrative Procedure Act 1961 (1990). 58. See eg Chevron v NRDC 476 US 519 (1984), where the Supreme Court indicated that there should be rather greater judicial deference to the decisions of administrative agencies on matters of law.

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Judicial review and codification 525 (b)

Administrative Decisions (Judicial Review) Act 1977

This Act was passed by the Australian Parliament in 1977, coming into force in 1980. It sets the limits to the jurisdiction of the Federal Court injudicial review proceedings. The Federal Court itself was established under legislation in 1976,59 opening for business early in 1977. Judicial review, particularly in the field of migration law ,60 has come to be a significant part o f the caseload. Unlike the High Court in England and Wales, the Federal Court does not possess any inherent jurisdiction:61 whatever original jurisdiction it does possess lies within the gift o f the Commonwealth Parliament. Justice Callinan explains in Abebe v Commonwealth: ‘The Federal Court is a court created by the Parliament pursuant to s. 71 of the Constitution. Section 71 itself does not by its language suggest that a court created pursuant to it must have unlimited federal jurisdiction, or any particular quantum o f federal jurisdiction . ’ 62 For present purposes, the most important provision in the Administrative D ecisions (Judicial Review) Act is s 5, where the grounds o f judicial review are set out in statutory form. For the most part, these restate the common law .63 The language reflects this open texture. Thus one finds that ‘breach o f the rules natural justice ’ 64 and ‘error o f law, whether or not the error appears on the record o f the decision ’ 65 are set out as possible grounds. To give meaning to these phrases, o f course, it is necessary to refer back to the common law. This provides the background against which the Act functions and it has influenced judicial interpretation o f the Act: ‘the culture o f the common law . . . pervades the whole o f the proceedings . ’ 66 In Kioa v West, 67 Mason J stated: ‘The statutory grounds o f review enumerated in s. 5(1) are not new - they are a reflection in summary form o f the grounds on which administrative decisions are susceptible to challenge at common law. The section is to be read in the light o f the common law and it should not be understood as working a challenge to common law grounds o f review, except in so far as the language o f the section requires i t . . . . [I]t is not the primary object o f the section to amend or alter the common law content o f the various grounds.’ 59. Federal Court of Australia Act 1976 (Cth). See M Crock and R McCallum ‘Australia’s Federal Courts: Their Origins, Structure and Jurisdiction’ (1995) 46 South Carolina LR 719. 60. But note the impact of the Migration Reform Act 1992 (Cth), discussed in the text accompanying nn 100-113, below. 61. Federal Court of Australia Act, s 6 ; see generally Australian Law Reform Commission Federal Jurisdiction (Adversarial Background Paper No 1, 1996). 62. (1999)73 ALJR 584 at 637. 63. See M Aronson and B Dyer Judicial Review ofAdministrative Action (Sydney: Law Book Co, 1996) p 49. 64. Section 5(1 )(a). 65. Section 5(l)(f)6 6 . J Goldring ‘Public Law and Accountability of Government’ (1984) 15 Federal LR 1 at 1 2 . 67. (1985) 159 CLR 550 at 576. See also Hamblin v Duffy (1981) 34 ALR 333 at 338, per Lockhart J: ‘It is legitimate and helpful to seek guidance from the general body of administrative law developed by the courts, especially in the United Kingdom and Australia, relating to the circumstances in which the prerogative writs. . . issue . . .’

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526 Legal Studies This has proved to be the dominant principle in the judicial interpretation o f the grounds o f review set out in the 1977 Act. The Federal Court has felt itself free to draw on developm ents in the com m on law equivalents o f the statutory provisions. Furthermore, s 5(1 )(j) permits review on the basis that a decision was ‘otherwise contrary to law ’. This open-ended provision was included to allow for common law developments to be incorporated within the A ct .68 Some guidance is given as the meaning o f ‘improper exercise o f pow er ’ 69 and ‘no evidence or other material to justify the making o f the decision ’ ,70 but this is in turn reflective o f the common law and the language is hardly more precise. The legislature is not giving much guidance to the Federal Court when it provides that it is one form o f an ‘improper exercise o f power’ for it to be ‘so unreasonable that no reasonable person could have so exercised the power ’ .71 This is merely to restate the common law tautology in statutory form. Contrary to the im pression som etim es formed outside Australia, the interpretation and operation o f the 1977 Act have not been free from substantial difficulty. This can be illustrated by an examination o f the application o f the ‘no evidence’ ground o f review .72 This is a cousin o f the American ‘substantial evidence’ standard, discussed above. Section 5(1 )(h) o f the Act provides as a ground of review: ‘that there was no evidence or other material to justify the making of the decision’. In a report published in 1971, the Commonwealth Administrative Review Committee had concluded that a lack o f evidence to support a finding o f fact was usually reviewable at common law as an error o f law .73 The Committee took the view that the error o f law ground o f review in the then proposed legislation would encompass review for lack o f evidence. A member o f the Committee has revealed that an even more expansive view o f the then common law was taken: ‘The Committee considered introduction o f the United States ground — “lack of substantial evidence on the record” — but considered the scope o f error o f law to be sufficiently wide to encom pass at least a large part o f that ground . ’ 74 In contrast, the Committee o f Review o f Prerogative Writ Procedures, in a report issued in 1973, was o f the opinion that the head o f review for error o f law might not even be adequate to cover review for ‘no evidence’, let alone the stricter scrutiny for lack o f substantial evidence .75 It was accordingly recommended that a lack o f evidence ground be specifically provided for, this proposal being adopted in the Act. 6 8 . Aronson and Dyer, above n 63, p 208. 69. Section 5(2). 70. Section 5(3). 71. Section 5(l)(e) and (2)(g). 72. For a full discussion of this ground of review, see T H Jones and R Thomas ‘The “No Evidence” Doctrine and the Limits to Judicial Review’ (1999) 8 Griffith LR 102. What follows is a simplified account. 73. Commonwealth Administrative Review Committee Report (Parliamentary Paper No 144, 1971) para 36(v). 74. H Whitmore ‘Administrative Law in the Commonwealth: Some Proposals for Reform’ (1972) 5 Federal LR 7 at 13. 75. Committee of Review of Prerogative Writ Procedures Report (Parliamentary Paper No 56, 1973) paras 41-43.

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Judicial review and codification 527 The key question o f interpretation has concerned the relationship between s 5( 1)(h) and the error o f law ground in s 5( 1)(f). Could there be circumstances where a lack o f evidence case, which could not be brought under s 5( 1)(h), could instead be brought within s 5(1 )(f)7 One interpretative approach was that the presence o f s 5(1 )(h) did not preclude the invalidation o f a decision for lack of evidence under s 5 (l) ( f ) . 767 A second approach was that, whatever the content o f their common law equivalents may have been, the head of review for error o f law should be read in such a way as to exclude review for legal error in the form o f no evidence. The conflict between these two approaches was resolved in 1990 by the decision o f the High Court in Australian Broadcasting Tribunal v Bond,11 which remains the leading authority on the scope of review under the Administrative D ecisions (Judicial R eview) Act. Prior to the decision o f the High Court in Bond , the prevailing approach in the Federal Court had been that the remedial character o f the legislation required a generous interpretation to be given to the breadth o f judicial review under the A ct . 78 Bond indicated that a more conservative approach should be taken and that, in some respects at least, the availability o f judicial review under the 1977 Act might be more circumscribed than that at common law. For the majority, Mason CJ adopted a narrow interpretation o f the defining notion o f ‘a decision to which this Act applies ’ .79 He noted that if the concept o f ‘decision’ was extended too far, there was a risk that the efficient administration o f government would be impaired. The C hief Justice held that generally only final or operative, rather than intermediate, determinations are reviewable (unless the intermediate determination is one specifically provided for by statute80). This aspect o f the judgm ent has generated a considerable case law about what amounts to a sufficiently final decision .81 Robin Creyke and Graeme Hill correctly point out this ‘has introduced a degree o f subtlety and complexity to judicial review which was never intended by those in the 1970s who codified the common law rights to judicial review ’ . 82 As well as offering guidance on the kinds o f ‘decision’ to which the 1977 Act applies, Bond was important for what it had to say about the relationship between the different heads o f review contained in s 5. The C hief Justice concluded that findings o f fact ‘which constitute elem ents in the chain o f reasoning leading to the ultimate administrative decision or order’ are reviewable for both error o f law under s 5( 1)(f) and no evidence under s 5(1 )(h ) . 83 Each of 76. See the account of Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 169. 77. (1990) 170 CLR 321. 78. See especially Lamb v Moss (1983) 49 ALR 533. 79. Administrative Decisions (Judicial Review) Act 1977 (Cth), s 5(1). 80. (1990) 170 CLR 321 at 337. 81. For an example of an administrative decision held to be sufficiently final and determinative, see Deloitte Touche v Australian Securities Commission (1996) 136 ALR 453; for two examples of decisions held to be insufficiently final and determinative, see Tasmanian Consen’ation Trust v Minister for Resources (1995) 127 ALR 580 and NSW Aboriginal Land Council vATSIC (\995) 131 ALR 559. According to McMillan, above n 37, p 367: ‘It is fair to say that quite a deal of the analysis in the cases leads nowhere.’ 82. R Creyke and G Hill ‘A Wavy Line in the Sand: Bond and Jurisdictional Issues in Judicial and Administrative Review’ (1998) 26 Federal LR 15 at 43 (see also at 20). 83. (1990) 170 CLR 321 at 328.

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528 Legal Studies the specific heads o f review in s 5(1) should be read in the context o f the others and not as being free-standing .84 The Chief Justice said that the error o f law ground in the statute embraced the ‘no evidence’ rule ‘as it was accepted and applied in Australia before the enactment o f the AD(JR) A ct’ in 1977.85 The ‘no evidence’ ground in the Act expanded that concept (to the limited extent permitted under s 5(3)). In fact, it is difficult to say with any certainty quite what stage of development the ‘no evidence’ ground o f review had reached by 1977.86 The Chief Justice was not able to offer much guidance on this issue .878 The method o f statutory interpretation adopted by Mason CJ in Bond was rather curious; it was doubted afterwards by the full Federal Court in Szelagowicz v Stocker.™ On the assumption that the Australian common law o f judicial review has not reached the end o f its development, 89 Gummow J’s extra-judicial question is appropriate: ‘Is not the Act to be read in an ambulatory fashion so as to accommodate decisions which modify the general law from time to time ? ’ 90 The Administrative Decisions (Judicial R eview ) Act is not the only means to gain access to the Federal Court in a judicial review case. An applicant can utilise s 39B o f the Judiciary Act 1903 (Cth) to apply for a prerogative writ (mandamus or prohibition) or an injunction against a Commonwealth officer. If the error o f law ground o f review in the Administrative Decisions (Judicial R eview) Act were to be interpreted as fixed in 1977, thereby ignoring more than two decades of common law development, it may well be that litigants could succeed under s 39B (where they are not limited by statute as to the grounds o f review) and fail under the 1977 A ct . 91 Gummow J has commented: ‘[I]t has not been suggested that the remedies referred to in s. 39B . . . are identified solely by the case law in England and the colonies in 1900. May not the result be in such a case that the [1977] Act fails in its purpose o f providing a convenient and effective means o f redress to persons aggrieved by federal decision-m aking procedures ? ’ 92 There are two factors which appear to have influenced the interpretative method adopted by Mason CJ in Bond. The first is that s 5 of the Administrative Decisions

84 . (1990) 170 CLR 321 at 357-358. 85 . Although the Act did not come into force until 1980. 8 6 . The precise status of ‘no evidence’ as a ground of judicial review under Australian common law is far from clear: see Szelagowicz v Stocker (1994) 34 ALD 16 at 20; Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 70 ALR 147 at 150. The strongest common law authority is the decision of the High Court in Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473, where some members appeared to accept that the making of findings and the drawing of inferences in the absence of evidence could constitute an error of law. 87. See the apparent contradiction between the accounts given as to whether the Australian common law recognises a ‘no sufficient’ or ‘no probative’ evidence test: (1990) 170 CLR 321 at 355-356 and 359-360. 8 8 . (1994)35 ALD 16 at 21. 89. This is recognised in Sir Anthony Mason ‘Administrative Review: The Experience of the First Twelve Years’ (1989) 18 Federal LR 122 at 125. 90. W M C Gummow ‘Reflections on the Current Operation of the ADJR Act’ (1991) 20 Federal LR 128 at 129. 91 . Applicants not infrequently commence proceedings concurrently under both Acts. Order 54A of the Federal Court Rules makes provision for a joint application to be made. 92 . Gummow, above n 90, p 129.

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Judicial review and codification 529 (Judicial R eview) Act was not interpreted strictly as containing a code o f the grounds o f judicial review. The statutory provisions were not seen as independent and free-standing. The Chief Justice did not interpret s 5(1 )(h), as elucidated by s 5(3), as definitive o f the no evidence doctrine. He concluded that: ‘such a result would verge upon the extreme and would pay scant attention to the traditional common law principle that an absence o f evidence to sustain a finding or inference o f fact gives rise to an error o f law . ’ 93 The second determining factor was that the Act had to be read in the context o f the common law, where the grounds o f judicial review are not defined clearly and have the tendency to overlap with one another. The common law developed as a set o f general principles governing the applicability o f the prerogative writs. There are inherent difficulties in seeking to capture this flexible common law system within a statute. Generalisations about legal trends are always dangerous, but it is suggested that the limiting or conservative approach to judicial review reflected in Mason CJ’s judgment in Bond is representative o f High Court jurisprudence. This is in contrast to the Federal Court, which has tended to take a more activist and less deferential stance. Particularly in the field o f migration law, there has been a tension between the approaches o f the two courts .94 Migration cases have been central to the development o f the principles o f judicial review by the Federal Court. There has been a series o f High Court decisions which have attempted to rein in the ‘over-zealous judicial review ’ 95 o f the Federal Court. Thus, in Minister fo r Immigration and Ethnic Affairs v Wu Shan Liang ,96 the High Court found it expedient to remind the Federal Court that when a court is engaged in examining the legality o f an administrative decision, it ‘must beware of turning a review o f the reasons o f the decision-m aker upon proper principles into a reconsideration o f the merits o f the decision’. This is not an isolated instance .97 Som e explanation can be offered for the more expansive approach to judicial review on the part o f the Federal Court. The latter is principally a court o f first instance. Judges see before them cases where those seeking judicial review have been treated unfairly or have been subject to poor administrative d ecision ­ making. It is only to be expected that a fair-minded judge will be prepared to adopt an expansive approach to the grounds o f judicial review in order to do justice. There is always the danger that this may lead the judge into the forbidden area of the merits o f the decision, but the line between method and merits, or procedure and substance ,98 is something which has to be determined by the judge. It is not something which can be pre-ordained by statute. Secondly, when the 93. Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358. 94. Ironically enough, it was the decision of the High Court in Kioa v West (1985) 159 CLR 550 which opened the way for the application of the rules of procedural fairness to discretionary migration decisions. 95. Ministerfor Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. 96. (1996) 185 CLR 259. The same point was made emphatically by Brennan J in A-G (NSW) v Quin (1990) 170 CLR 1 at 35-36. 97. See Ministerfor Immigration v Eshetu (1999) 73 ALJR 746; Ministerfor Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. 98. As said in Hanna v Plumer 380 US 460 at 471 (1965): ‘The line between “substance” and “procedure” shifts as the legal context changes.’

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530 Legal Studies Federal Court was established in 1976, and subsequently given the statutory mandate under the Administrative Decisions (Judicial Review) Act, it could have been anticipated that the new court would take its responsibility to judicially review the exercise o f executive power seriously: the purpose o f the court cannot have been merely to legitimate the activities o f the Commonwealth government. More than 150 years previously, Thomas Jefferson had written despairingly of the Federal judiciary in the United States that it was, ‘an irresponsible body . . . working like gravity by night and by day, gaining a little today and a little tom orrow, and advancing its n oiseless step like a thief over the field o f jurisdiction ’ .99 Some Australian politicians evidently have come to feel similarly, with the result that there have been legislative efforts to reduce the potential scope for judicial review o f migration decisions. The Migration Reform Act 1992 (Cth ) 100 sought to restrict judicial review of migration decisions by the Federal Court, through the creation o f a separate body of law . 101 For those determinations which are open to judicial review, neither the Administrative Decisions (Judicial Review) Act nor s 39B o f the Judiciary Act are applicable. The relevant law is to be found in the revised Migration Act 1958 (Cth). The available grounds o f judicial review are set out in s 476. To some extent, these mirror those in the Administrative Decisions (Judicial Review) Act, albeit ‘somewhat more circumscribed ’ . 102 Subsections 476(2) and (d)-(g) proceed to set out the grounds on which judicial review is not available. The excluded grounds are: denial o f natural justice; unreasonableness; relevant and irrelevant considerations; bad faith; and any other abuse o f power. The intention is to severely limit the scope of judicial review and to take migration decisions outside the mainstream o f public law. Natural justice has been the most common ground relied upon injudicial review o f migration decisions . 103 The rich body o f common law principles is no longer applicable, being replaced by a ground o f review for actual bias alone . 104 As Mary Crock has pointed out, ‘the excluded grounds appear to go to the very heart o f the ADJR Act and o f the common law which this Act essentially cod ifies ’ . 105 Attempts by Federal Court judges to circumvent the restrictive effect of the judicial review provisions in the Migration Act have been overruled by the High Court. 106 It is arguable whether the effect o f the reforms is to ‘excuse breach o f the rules o f natural justice or authorise unreasonable decisions ’ . 107 In their joint, dissenting judgment in Abebe v Commonwealth, Gummow and Hayne JJ contend that:

99. T Jefferson ‘Letter to Charles Hammond’ (1821) in The Writings of Thomas Jefferson (Memorial Edition: Washington, DC, 1903-04) vol 15, p 331. 100. The relevant provisions came into effect in September 1994. 101. The constitutionality of these provisions was upheld by a majority (4-3) of the High Court in Abebe v Commonwealth (1999) 73 ALJR 584. 102. Minster for Immigration v Eshetu (1999) 73 ALJR 746 at 756, per Gaudron and Kirby JJ. This is something of an understatement. 103. McMillan, above n 37, pp 356-357. 104. Migration Act 1958 (Cth), s 476(1 )(f). 105. M Crock ‘Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill?’ (1996) 18 Sydney LR 267 at 272. 106. Minister for Immigration v Eshetu (1999) 73 ALJR 746. 107. (1999) 73 ALJR 746 at 759, per Gaudron and Kirby JJ.

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Judicial review and codification 531 ‘to define the jurisdiction o f a federal court to determine controversies with respect to those rights and liabilities by excluding grounds for relief which otherwise would be available has the effect o f restricting or denying the right or liability itself. This stultifies the exercise o f the judicial power o f the Commonwealth. ’ 108 On the other hand, Gaudron and Kirby JJ claim in their joint judgment in Minister

fo r Immigration v Eshetu : ‘A person who wishes to rely on those grounds can do so only in proceedings under s. 75(v) of the Constitution which confers jurisdiction on this Court in all matters “in which a writ o f mandamus or prohibition or an injunction is sought against an officer of the Commonwealth ’ ’ . ’ 10910 Whilst accurate as a matter o f strict constitutional law, this latter approach is somewhat unrealistic. To make an application to the High Court for a prerogative writ the sole means o f redress for an unreasonable migration decision is to have the practical effect o f rendering access to a legal remedy all but impossible. (The equivalent in England and Wales would be for a petition to the House o f Lords to be the sole judicial means o f redress.) Indeed, the judge at first instance in Eshetuu0 concluded that the Refugee R eview Tribunal had acted unreasonably, but that s 476 o f the Migration Act precluded him from doing anything about it! The High Court has neither the time nor the resources to entertain many such cases . 111 It is instructive that the majority in the Eshetu case took a very restrictive view o f what amounts to unreasonableness . 112 Anything else would have merely served to encourage more litigation . 113 The response o f the Australian government to the legal difficulties has been to suggest even further restrictions to the availability o f judicial review, with a proposal to introduce a privative clause into the Migration A ct . 114 If passed into legislation, this would have the effect o f severely restricting access to both Federal and High Court judicial review o f migration decisions . 115 Under the 108. (1999)73 ALJR 584 at 613. 109. (1999) 73 ALJR 746 at 757 (dissenting, but not on this point). 110. Eshetu v Ministerfor Immigration and Multicultural Affairs (1997) 142 ALR 474 (Hill J); see generally M Crock and M Gibian ‘Before the High Court. Minister for Immigration and Ethnic Affairs v Eshetu (1998) 19 Sydney LR 457. 111. Note the observations of McHugh J in Re The Minister for Immigration and Multicultural Affairs, ex p Durairajasingham [2000] HCA 1, paras 7-15. 112. See, in particular, the judgment of Gleeson CJ: (1999) 73 ALJR 746 at 753-755. 113. Note the customary prescience in the warning of Murphy J, in The Queen v Dunphy, ex p Maynes (1977-78) 139 CLR 482 at 497, as to the risk of the review jurisdiction of the High Court becoming a surrogate appeals mechanism. He was speaking in the context of industrial relations, but the point is of more general applicability. 114. Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth). An earlier legislative attempt (Migration Legislation Amendment Bill (No 4) 1997 (Cth)) to introduce a privative clause was not pursued in the face of opposition. For a restrained analysis of the earlier Bill, see C D Campbell ‘An Examination of the Provisions of the Migration Legislation Amendment Bill (No 4) 1997 Purporting to Limit Judicial Review’ (1997) 5 Aust J Adm Law 135. 115. The constitutionality of restricting access to the High Court in this way may be open to question; see Migration Legislation Amendment (Judicial Review) Bill 1998, Bills Digest No 90(1998-99).

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532 Legal Studies prevailing Hickman 116 doctrine articulated by Dixon J, judicial review would be ousted from all decisions, with three exceptions: exceeding constitutional limits; narrow jurisdictional error; and bad faith. Although drafted as a privative clause with no exceptions, its effect would not be as total as its language suggests. A privative clause is read as an indirect grant o f jurisdiction to the decision­ maker, with the consequence that the definition o f a valid decision is expanded beyond what is overtly defined as a valid decision in the empowering statute. Brennan J has explained: T h e privative clause treats an impugned act as if it were valid. In so far as the privative clause withdraws jurisdiction to challenge a purported exercise o f power by the repository, the validity o f acts done by the repository is expanded . ’ 117 If introduced into the Migration Act, a privative clause would in turn generate a considerable case law testing the scope o f the three aspects o f the Hickman doctrine (as well as the constitutionality o f the privative clause itself). It would not put an end to judicial review o f migration decisions; rather, it would shift the focus o f litigation to these different issues. The courts would be left ‘effectively to “reclaim ” their jurisdiction by reading down the privative clause ’ . 118

IV

THE DIFFICULTIES OF CODIFICATION

The potential advantages and disadvantages o f codifying the grounds o f judicial review can be seen in better relief following the examination o f the American and Australian models. It would be naive in the extreme to believe that the many practical and philosophical problems attending judicial review can be solved by placing the grounds o f review in statutory form. After all, as Gustav Hugo described, ‘statutes are not the only sources o f juristic truth ’ . 119 The legal principles deal with complex questions o f individual and collective rights. As in other areas o f modern law, they defy simple or precise definition. Judicial review is concerned with the application o f standards o f fairness and reasonableness. This requires the exercise o f discretion according to

116. R v Hickman, exp Fox and Clinton (1945) 70 CLR 598 at 616-6 \l\R v Commonwealth Rent Controller, ex p National Mutual Life Association of Australia Ltd (1947) 75 CLR 361 at 369, per Latham CJ and Dixon J (a seldom cited summary); and also Darling Casino v NSW Casino Control Authority (1997) 191 CLR 602 at 629-635, per Gaudron and Gummow JJ. It should be pointed out that, contrary to Anisminic v Foreign Compensation Commission [ 1969] 2 AC 147, the distinction between jurisdictional error and error within jurisdiction remains of some significance in Australia; see eg Craig v South Australia (1994-95) 184 CLR 163 at 178-179. 117. Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 194. 118. Senate Legal and Constitutional Legislation Committee Consideration of

Legislation Referred to the Committee: Migration Legislation Amendment (Judicial Review) Bill 1998 (April 1999) para 2.48. 119. G Hugo ‘Die Gesetze sind nicht die einzige Quelle der juristischen Warheiten’ (1812) 4 Civilistisches Magazin 89.

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Judicial review and codification 533 contemporary values and ideas . 120 Trevor Allan has stated: T h e jurisdiction cannot be reduced to a series o f inflexible rules . ’ 121 It is a natural assumption that codification furthers the values o f legal certainty and clarity. At a superficial level, this is indeed the case. The statute will set out the heads o f review, but to achieve a full understanding o f the scope o f judicial review w ill in volve exten sive reference to judicial decisions. The risk in codification is that certainty and clarity will com e at the price o f the law being insufficien tly flexib le to take account o f future developm ents. A distinct characteristic o f the evolution o f judicial review o f administrative action has been the progressive developm ent by the judiciary o f legal standards against which the powers o f public officials can be measured. It is no answer to this fear o f petrification to say that the courts have found w ays to get around legislative constraints in the past. 122 What, then, is the value o f codification in the first place? If the supposed benefits o f codification are legal certainty and clarity, the least one can expect is that a statute will be an accurate reflection o f the law. The legislation is otherwise little more accessible than the common law which it replaces. In Australia, the applicable law was not frozen in 1977 by the Administrative D ecisions (Judicial R eview ) Act. An evolutionary interpretation has been adopted, allowing the law to take account o f such developments as legitimate expectation , 123 proportionality 124 and fundam ental human rights . 125 T hese concepts have their source outside the statutory framework, in the ‘safety net’ provided by the common law. The result is that the bare text o f the 1977 Act does not even provide an accurate guide to the grounds o f judicial review, let alone the details o f their application. In England and Wales, the principles o f judicial review are still being developed and refined by the judiciary . 126 Even before implementation o f the Human Rights Act 1998, a greater sensitivity had been shown to issues o f fundamental rights. 127 The law will no doubt continue to grow and change, perhaps through the application o f the principle o f

120. R M Unger Law in Modern Society: Towards a Criticism of Social Theory (New York: Free Press, 1976) pp 192-237. 121. T R S Allan Law, Liberty and Justice. The Legal Foundations of British Constitutionalism (Oxford: Clarendon, 1993) p 185. 122. See Verkuil, above n 32, p 707. This is a curious argument for him to make, given his view that the courts need a legislative mandate for their review function. 123. Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. 124. Minister for Resources v Dover Fisheries Pty Ltd (1993) 116 ALR 54. 125. Premalal v Ministerfor Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 117. The judgment of Einfeld J is exemplary of a principled (Dworkinian) approach to judicial review. 126. See eg R v Uxbridge Magistrates Court, ex p Adimi (Chouki) [ 1999] 4 All ER 520 (asylum seekers had a legitimate expectation under the UN Convention Relating to the Status of Refugees that they would not be prosecuted for possession of false documents on entry into the United Kingdom). 127. See eg R v LordSaville ofNewdigate, expB (No 2) [1999] 4 All ER 860 (anonymity of individual witnesses at the Bloody Sunday inquiry was justified by the genuine fear of reprisal attacks).

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534 Legal Studies proportionality 128 or the development o f a notion o f ‘substantive unfairness ’ . 129 If these are thought to be desirable developments, codification o f the grounds o f review runs the risk o f stifling these nascent legal principles. On the other hand, o f course, if judicial power is seen as a threat, codification presents an opportunity to constrain and direct the future path o f the law. If it is considered important for the role o f the courts to be limited to a legislative mandate granted by Parliament, codification presents the opportunity to enforce this approach. Paradoxically, however, it may be that the generally non-deferential approach adopted by the Federal Court in Australia is in part a result of the legislative underpinning provided by the Administrative D ecisions (Judicial Review) Act. Recent Australian developments, however, show the dangers involved in placing the grounds o f judicial review in statutory form. Under the Westminster system o f government, codification has the effect o f placing the content o f the grounds o f judicial review in the hands o f the Government, which can generally secure the passage o f its legislative proposals . 130 When the Migration Reform Act 1992 (Cth) and the Migration Legislation Amendment (Judicial R eview) Bill 1998 (Cth) were proposed to the Australian Parliament by the Minister for Immigration, he was purporting to decide for him self the grounds on which judicial review o f his actions would be available. The argument from democratic legitimacy is more appropriate to the United States with its stricter separation o f powers, where it is Congress setting the terms for judicial control o f the Executive Branch . 131 Transferred to the Westminster model, it becomes potentially dangerous. 132 The argument that codified grounds o f review are in some way more rational than their com m on law counterparts w ould be difficult to sustain. The 128. See G de Burca ‘Proportionality and Wednesbury Unreasonableness - The Influence of European Legal Concepts on UK Law’ (1997) 3 European Public Law 561. 129. See Thames Valley Electric Power Board v NZFP Pulp and Paper Ltd [1994] 2 NZLR 641; and, generally, J Caldwell ‘Judicial review: Review of the merits?’ (1995) NZU 343; J McLachlan ‘Substantive Fairness’ (1991) 2 Public Law Rev 12. 130. This is not to neglect the role of the second chamber in Parliament. Prima facie, the Australian Senate should be more of a restraint upon the government. The latter does not usually control the former and has no means to by-pass it, short of a dissolution. That said, the Migration Reform Act 1992 (Cth) was passed by the Senate. Senatorial opposition to the Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth) has been fairly robust; see Senate Legal and Constitutional Legislation Committee, above n 118. 131. But note that in the United States also, Congress has seen fit to place limits on access to judicial review for illegal migrants; see the Illegal Immigration Reform and Immigrant Responsibility Act 1996. It is notable that one commentator explains it as the result of ‘Congressional distrust of and hostility towards the federal judiciary’: MI Medina ‘Judicial Review - A Nice Thing? Article III, Separation of Powers and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996’ (1997) 29 Connecticut LR 1525 at 1558. 132. Compare the anecdotal evidence recorded by S Sedley ‘The Sound of Silence: Constitutional Law Without a Constitution’ (1994) 110 LQR 270 at 285, as to the consideration by the Thatcher cabinet of restricting the scope of judicial review. But note that some form of judicial review seems to be necessitated by art 6(1) of the European Convention on Human Rights (and therefore by the Human Rights Act 1998); see eg Zander v Sweden, Judgment of 25 November 1993, Series A, No 279-B; (1993) 18 EHRR 175; and, generally, A W Bradley ‘Administrative Justice: A Developing Human Right?’ (1995) 1 European Public Law 347.

Administrative Law

Judicial review and codification 535 interpretative arguments surrounding the Administrative D ecisions (Judicial Review ) Act can actually be more arcane and technical than those at common law. The grounds o f review articulated in the United States Administrative Procedure Act 1946 appear more rational, if only by virtue o f their deceptive simplicity. One indication o f the rationality o f a legislative scheme for judicial review must be an absence o f litigation concerning the scope o f its applicability. The Australian statute fails this test. Nor can it be supposed that legislative activity will always be progressive. The ‘n ew ’ Australian model o f judicial review o f migration decisions prescribes a very limited role for the judiciary: ‘to oversee no more or less than the proper application o f the rules set down by Parliament. ’ 133 This runs counter to the modem judicial trend towards acceptance of a more substantive conception o f legality . 134 There has been something o f a shift in the underlying justification o f judicial review away from a formalist, and towards a more substantive, idea o f the rule o f law. The courts have become more prepared to elaborate principles o f good administration to supplement legislative intent. The development o f principles such as legality, procedural propriety, rationality, relevancy, legitim ate expectation, equality and the protection o f fundamental rights have begun to give shape to a substantive meaning of the rule o f law . 135 The rationality o f the legislature is not necessarily that o f the judiciary . 136

The separation of powers As may be inferred from the preceding discussion, codification o f the grounds o f judicial review raises issues pertaining to the separation o f powers. In this context, one must be wary o f any simple equation between a concern with this issue and a regressive, D iceyan approach to public la w . 137 Even Thom as Jefferson, for all his fear o f Federal judicial power, declared: T h e dignity and stability o f government in all its branches . . . depend so much upon an upright and skilful administration of justice, that the judicial pow er ought to be distinct from both the legislature and executive and independent upon both, that so it may be a check upon both, as both should be checks upon that. ’ 138

133. Crock, above n 105, p 296. 134. Crock, above n 105, refers to this as ‘the notion that judicial review involves the protection of justice and equity in the context of the rule of law and the protection of the rights of individuals affected by an exercise of administrative power’. See also A H Hammond ‘Judicial review: the continuing interplay between law and policy’ [1998] PL 34 at 43. 135. See P P Craig ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] PL 467; and also T R S Allan ‘Fairness, Equality, Rationality: Constitutional Theory and Judicial Review’ in C Forsyth and I Hare (eds)

The Golden Metwand and The Crooked Cord. Essays in Public Law in Honour of Sir William Wade (Oxford: Clarendon, 1998) pp 15-37. 136. An observation of von Savigny, above n 7, p 111, is pertinent: ‘Every government is to blame which is ignorant of, or disregards, the intelligence of its age.’ 137. See eg Harlow and Rawlings, above n 23, pp 45-47. 138. T Jefferson ‘Notes on Virginia Q.XIII’ (1782) in Jefferson, above n 99, vol 2, p 162.

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536 Legal Studies Under the Westminster model o f government there is an absence o f anything like the separation o f powers found in the United States . 139 Instead, there is a delicate system o f checks and balances. One important safeguard against the abuse o f power is the ability o f the courts to scrutinise the activities o f public bodies and to invalidate decisions made in excess o f power . 140 Peter Cane states: T h e most prominent application o f separation o f powers theory in the British system is that which dictates the preservation o f the independence o f the judiciary from control or influence by the executive branch o f government. ’ 141 The example o f Australian migration law demonstrates the danger to this theory presented by codifying the grounds o f judicial review. Given the use which a government can make o f the doctrine o f parliamentary sovereignty to enforce its view s, one must be particularly sensitive to proposals which would upset the delicate constitutional balance between Parliament and judiciary which is reflected in the common law principles o f judicial review. The separation o f powers is central to any notion o f executive accountability to the law . 142

V

CONCLUSION

The conclusion to this article can only be a negative one, in that the supposed advantages o f codification do not appear so great upon close examination. If it is sought to foster the further development o f the principles o f judicial review, this can be best achieved by leaving the task to the judiciary . 143 Academic prompts to the judiciary to more clearly articulate the legal principles are a necessary part o f this process . 144 One has to be realistic about what can be achieved. Martin Loughlin has noted the tendency o f the judiciary ‘to apply a set o f rather simple principles to [the] complex world o f government’ . 145 The fact remains, how ever, that the law o f judicial review , even in the code

139. The US Supreme Court has many times reaffirmed that the separation of governmental powers is essential to the preservation of liberty: see eg Mistretta v United States 488 US 361 at 380-383 (1989); Morrison v Olson 487 US 654 at 685-696 (1965). 140. See P Cane An Introduction to Administrative Law (3rd edn, Oxford: Clarendon, 1996)p 355. 141. Cane, above n 140, p 355. 142. Allan, above n 121, p 2. See also J W F Allison A Continental Distinction in the Common Law. A Historical and Comparative Perspective on English Public Law (Oxford: Clarendon, 1996) ch 7. 143. Allison, above n 142, p 240, queries the judiciary’s capacity to perform this task in the absence of institutional reform, supported by a ‘separation of powers that facilitates both administrative expertise and judicial independence’. 144. See eg J Jowell ‘Courts and the Administration in Britain: Standards, Principles and Rights’ (1987-88) 22 Israel LR 409; Jowell and Lester, above n 14; and also J Jowell ‘Restraining the State: Politics, Principle and Judicial Review’ (1997) 50 CLP 189 at 2 1 0 - 2 1 1 . 145. M Loughlin Legality and Locality. The Role of Law in Central-Local Relations (Oxford: Clarendon, 1996) p 410. In distinctive fashion, J Griffith ‘Principles and Politics and Public Law’ (1988) 26 Osgoode Hall LJ 833 at 853, points to the absence of judges with postgraduate degrees as one reason why ‘we look in vain for them to lead the way in the development of comprehensive principles in the field of public law’.

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Judicial review and codification 537 jurisdictions, remains mostly judge-made. The United States model has proved to be rather more enduring than its Australian counterpart. This is because the grounds o f review contained in the Administrative Procedure Act are few in number and expressed in general language. The Australian example shows that there is no straightforward relationship between a legislative mandate for judicial review and respect for the decisions o f the courts. In the migration field, at least, it is clear that som e decisions o f the Federal Court are regarded as an illegitimate use o f judicial power by many parliamentarians, resulting in legislative efforts to restrict the jurisdiction originally granted by Parliament. It will be apparent that the author has little sympathy for those who see the ‘problem ’ o f administrative law as one o f insufficiently deferential judicial review . 146 An Ethiopian refugee in Australia who is denied a rehearing o f his asylum claim, despite being subjected to a rudimentary tribunal proceeding regarded by five judges as legally flawed, might also beg to differ . 147 Legislative attempts to constrain judicial review are m isconceived and misguided. Kenneth Culp Davis has remarked: ‘Any effort to stifle judicial creativity is profoundly incompatible with the nature o f the judicial process. The basic strength o f the legal system lies in the combination o f the democratic elem ent through legislative enactments with judicial sen sitivity to the detailed needs o f individual cases - the combination o f legislation with the ever-growing common law . ’ 148 When presented with a hard immigration or other human rights case, wise judges should be unimpressed by legislation which seeks to restrain the exercise o f judicial review . 149 The notion that judicial humanity can or should be restricted by legislative enactment is a profoundly unattractive one.

146. 147. 148. 149. 1 All

Contrast McMillan, above n 37.

Minister for Immigration y Eshetu (1999) 73 ALJR 746. Davis, above n 56, p 14. See eg R v Secretary of State for the Home Department, ex p Fayed [1997] ER 228.

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Part III E m p irica l R e se a r c h

[9] STUDYING ADMINISTRATIVE LAW: A METHODOLOGY FOR, AND REPORT ON, NEW EMPIRICAL RESEARCH Peter H. Schuck* and E. Donald Elliott*}"

his article reports on an empirical study of some broad trends in federal administrative law that was recently concluded. Although the complete study is published elsewhere,1we also report our findings here for two reasons. First, we hope to broaden the audience for this research, especially among practicing administrative lawyers. We be­ lieve that the study provides some im portant and intriguing new per­ spectives on a num ber of issues: the changing style of appellate decisions in administrative law; the evolution of administrative law since the mid1960s; the patterns of remands to administrative agencies; and the effects of the Supreme C ourt’s Chevron decision. Second, we wish to call particular attention to the methodology of our study in the hope that other researchers will use it to probe additional questions of in­ terest to administrative lawyers and scholars.2

T

*Simeon E. Baldwin Professor of Law, Yale Law School. ■{■Assistant Administrator and General Counsel, U.S. Environmental Protection Agency; Professor of Law, Yale Law School (on leave of absence). The authors wish to acknowledge the financial support of the Administrative Con­ ference of the United States under Contract #AC8702013 and of the Yale Law School’s Center for Studies in Law, Economics and Public Policy, as well as the research as­ sistance of many students at Georgetown University Law Center and Yale Law School. Of these, David Elias and Nancy Ribaudo of Georgetown and Bob Easton and Tim Obst of Yale deserve special mention and thanks. Vik Raina, a computer science student at Yale, assisted Professor Elliott with programming. We are also grateful for the comments and suggestions received at the Yale Law School Faculty Workshop, and the discussion at the 1989 meetings of the Adminstrative Law sections of the American Association of Law Schools and the American Bar Association. Our col­ league at Yale, Professor Roberta Romano, deserves special mention for her help in refining our techniques for analyzing some of our data, as well as for her trenchant comments on earlier drafts. We, of course, are solely responsible for any errors that remain. 'Schuck 8c Elliott, To the C hevron Station: A n E m pirical Stu dy o f F ederal A dm in istrative Law, 1990 D uke L.J_____ 2One of us (Schuck) has already undertaken additional empirical research that employs similar methodology, this time focusing on judicial review of immigration and asylum decisions.

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This article, which consists essentially of excerpts from the long pub­ lished study, is divided into three parts. In Part I, we introduce our study by placing it in a larger intellectual context. Part II describes our research methodology. Part III summarizes the study’s principal findings. I.

We began with a puzzling fact. Although the study of administrative law started in earnest more than fifty years ago, we still know little about what is perhaps the central question in that field: how does ju ­ dicial review actually affect agency decisionmaking? This question goes to the fundamental nature and quality of the modern administrative state, yet academic specialists have largely neglected it;*3 the subject remains a m atter for uninform ed speculation.4 Despite (or perhaps because of) the lack of data, strong opinions on this question are common. O ur conversations and our reading per­ suade us that every self-respecting administrative lawyer has firm, if not always articulate or even consistent, convictions about the effect of judicial review upon agencies. Proof for this assertion abounds. Lawyers and their clients devote vast resources to challenging agency actions in the courts.5 With Talmudic intensity, legions of legal schol­ ars analyze the language and logic of judicial opinions in administrative law cases in their classrooms and professional journals.6 Agencies aThe few exceptions in the legal literature involve a consideration of this question in quite particular contexts. See, e.g ., Williams, H ybrid R ulem aking U nder the A dm inis­ trative Procedure Act, 42 U. C hi . L. R ev. 401, 425-36 (1975) (discussing response by three agencies to judicial interpretation of APA requiring more formal procedures in informal rulemaking by EPA); Leventhal, E nviron m ental Decision M aking a n d the Role o f the C ourts, 122 U. P a . L. R ev. 509, 554-55 (1974) (discussing EPA’s response to remand in International Harvester case). A broader empirical study of the courtagency relationship, Gardner, F ederal C ourts a n d Agencies: An A u dit o f the Partnership Books, l b Colum . L. Rev. 800 (1975), focuses upon judicial strategies of supervision rather than upon how agencies respond to remands. See generally P. Schuck, S uing Government : C itizen Remedies for O fficial W rongs 3-12, 125-81 (1983), and sources cited therein. Some political scientists have examined this question. See, e.g., R. Melnick, Regu­ lation and the Courts : T he C ase of the C lean A ir A ct (1983); S. W asby, T he S upreme Court in the Federal J udicial System (2d ed. 1987). 4This irony, of course, is common to all fields, not just law. By some perversity of intellectual inquiry, the most interesting and important questions in life are usually the most elusive and opaque. 3The number of administrative law cases in the federal appellate courts is large and growing. See Schuck 8c Elliott, su p ra note 1, at Chart 1. HThere are several publications devoted exclusively to administrative law doctrine. See, e.g., the A dm inistrative L aw Review (published by the American Bar Association) and the A d m inistrative Law J o u rn a l of the American University. There are also nu­ merous specialized journals concerned with judicial review of agency decisions in par­ ticular policy areas (e .g ., J o u rn a l o f A ir Law a n d Commerce; Jo u rn a l o f Energy Law an d Policy), and at least one leading law review publishes an annual administrative law issue (the April issue of the Duke Law Jo u rn a l).

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themselves exhibit much concern about how reviewing courts respond to their handiwork. Manifestly, the “experts” act as if judicial review of agency action was worth fighting, writing, and worrying about. They believe, in short, that what courts say to agencies matters, and matters deeply. But although there may be widespread agreem ent that judicial re­ view of agency action matters, there is no consensus about precisely how and under what circumstances it matters. As Jerry Masha w and David Harfst recently put it, “T he normative expectations of administrative lawyers have seldom been subjected to empirical verification of a more than anecdotal sort.”7 And different observers evidently rely upon dif­ ferent anecdotes. Most administrative law writers and teachers— and virtually all of them at one time or another— seek assiduously to expand and finetune judicial review of agency action, usually advocating a variety of institutional and doctrinal reforms for those purposes.8 They suppose, at least by implication, that what courts do matters substantively— that when a court decides that an agency erred or failed adequately to support its action, the court’s ruling actually (and not just normatively) controls the agency’s subsequent behavior in that case. This behavioral supposition, after all, is one of the raisons d ’etre of most of adminis­ trative law. T he conventional explanation for judicial review of agency action is the need to confine agencies to their legal authority. To deny that courts actually perform this task is to raise dark and difficult ques­ tions about the compatibility of the administrative state with the rule of law.9 On the other hand, academic discussion of this question (sometimes by the very same writers) often proceeds as if the axiom of judicial control of agency action were empirically false.10 Certain inexorable conditions, it is said, limit the capacity of reviewing courts to shape an agency’s conduct. Pointing to factors such as the narrow “bite” of legal doctrine, the political context of administrative decisionmaking, ju d i­ cial deference to agency expertise, the scope of agency discretion, an agency’s control of its agenda, the limited resources of litigants, and the protracted nature of agency proceedings, these commentators em-

7Mashaw & Harfst, R egulation a n d Yale J. on Reg. 257, 275 (1987).

Legal Culture: The Case o f M otor Vehicle Safety ,

4

8E.g., Strauss, The Place o f Agencies in G overnm ent, Separation o f Powers a n d the Fourth B ran ch , 84 Colum . L. R ev. 573 (1984); K. D avis , D iscretionary J ustice—A P re­ liminary

I nquiry (1969).

9See, e.g., Monaghan, M arbury a n d the A dm in istrative State,

83 Colum . L. Rev. 1

(1983). I0K. D avis , su p ra note 8, at 27, 216 (agency discretion limits effectiveness of judicial review).

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phasize that in practice if not in principle, an agency usually has the last word as well as the first.11 Which of these views is correct? We suspected that there was con­ siderable truth in both of them — that judicial review “m atters” in all cases (if only because review causes delay and additional cost before the agency’s action can be implemented), but that it has different ef­ fects depending upon a variety of factors. T hat much, of course, can be confidently asserted about virtually any legal phenomenon as com­ plex as the interaction between courts and agencies. T he more inter­ esting and challenging questions are whether research is capable of identifying those factors and effects, discerning significant patterns in the relationship among them, and deriving systematic conclusions that can illuminate the ways in which reviewing courts actually shape agency behavior. Believing that such a possibility must at least be entertained, we un­ dertook a large-scale empirical study of how federal agency actions fare when they are directly reviewed by appellate courts. Although we were especially interested in the fate of cases that a reviewing court remands to the initiating agency for further proceedings, we antici­ pated that such a study could also be designed to generate data bearing upon a num ber of other important, albeit subsidiary, features of ad­ ministrative law. In the course of our study, we came to appreciate all too well how problematic such research must inevitably be. T he government does publish data on the number, type, and judicial disposition of the ad­ ministrative cases that are appealed to the federal courts.12 But those data, while useful, are too highly aggregated to answer most of the more refined questions that we hoped to answer. We were therefore obliged to gather our own data in ways that are described below in Part II, consoling ourselves with the conviction that on questions of this importance and interest, even imperfect information is better than perfect ignorance. II. We began our study with four principal objectives in mind. First, we hoped to describe the general parameters of judicial review of federal administrative action. While recognizing the diversity of agencies, agency actions, reviewing courts, and judicial dispositions of agency 11See generally M. S hapiro , T he S upreme Court and A dministrative A gencies ( 1968). Practitioners, needless to say, find themselves on all sides of this question; their positions depend not only upon their experiences and orientations but also upon whether they are seeking to persuade their clients to challenge or to defend the agency’s position. ]2See, e.g., A dministrative O ffice of the U.S. Courts , A nnual Report of the

D irector.

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cases, we attem pted to render that diversity manageable by focusing our attention upon some broad categories of information. For exam­ ple, we wanted to establish the num ber of agency decisions that are reviewed by the courts of appeal; the proportion of those cases that are affirmed, reversed, and rem anded by the courts; the frequency with which rem anded cases are remanded for particular reasons; and the distribution of these variables among the different federal agencies and courts of appeals. At the same time, we hoped to shed light upon some ancillary, but potentially interesting attributes of judicial review of agency decisions, such as the length and footnoting of judicial opin­ ions, the num ber of split decisions, the size of appellate panel, the type of agency proceeding being reviewed, and the frequency with which the courts applied different standards of review. T o that end, we de­ cided to read a large,13 representative14 sample of opinions in which federal courts of appeal engaged in direct review15 of agency action. Second, we hoped to reveal some of the dynamic patterns of adm in­ istrative law by gathering these kinds of data for cases decided over a period of time that would bracket the two decades, 1965 to 1985, during which judicial review of agency action, by most accounts, ex­ perienced transformative conceptual and doctrinal changes.16 We therefore decided to read opinions rendered during Five discrete time periods. Four of them were six-month periods: in 1965, just before that transformation is thought to have begun; in 1974-75, at a midway point during that twenty-year period; in 1984, after the transform a­ tion would have concluded and just before Chevron was decided; and in 1985, after the Suprem e Court reaffirmed and clarified Chevron. T he fifth time period covered two months in early 1988, which was selected in order to learn whether the observed changes during the 1984-85 period had endured. T he 1984-85 period had the virtue of being close enough to the present to reflect the current state of administrative law (at least as revealed by our data), while also being distant enough from the present to facilitate our most im portant and most elusive objective: to reveal l3The total number of cases in our 1965-1985 sample was 2325, consisting of 372 decided in 1965, 277 decided in 1974-75, and 1676 decided in 1984-85. The number of cases in our 1988 sample was 147. The grand total, therefore, was 2472 cases. The data sets, and the reasons for constituting them as we did, are explained infra. l4Our sample included cases from each of the 16 appellate courts (the District of Columbia Circuit, the eleven numbered circuits, the Court of Claims, the Court of Customs and Patent Appeals, the Federal Circuit, and the Temporary Emergency Court of Appeals) which heard direct appeals from executive branch agencies during the period under study. A list of the agencies, together with their coding keys, is appended as Appendix A. l5We excluded all cases, such as Social Security Act adjudications, that had come to the courts of appeal through the federal district courts or through specialized judicial tribunals such as the U.S. Tax Court. '6See Stewart, The R eform ation o f A m erican A dm in istrative Law , 88 H arv . L. R ev. 1667 (1975).

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what actually happens when appellate courts remand cases to federal agencies for further proceedings. For this purpose, it was necessary that enough time had elapsed since the remand for the vast majority of remanded cases to have reached their conclusions so that we could analyze them as part of our data set.17 In order to learn what had transpired after the cases were remanded to the agencies, we conducted telephone (and occasionally personal) interviews with the lawyer who represented the agency and with the lawyer who represented the petitioner, in each of the roughly 180 cases during the 1984-85 period in which a court of appeal had re­ manded the case to the agency for further proceedings.18 Those in­ terviews were designed to elicit data bearing upon two “facts” : the specific post-remand events (about which there was seldom much dis­ agreement between the opposing lawyers), and the parties’ evaluation of the outcomes (about which disagreement was more common) that could not always be resolved by attem pting to integrate the lawyers’ differing perceptions. O ur final objective explains why we defined and divided the 1985 period precisely as we did. By doing so, we hoped to learn how the C ourt’s Chevron decision, as clarified and reaffirmed eight months later in Chemical Manufacturers Association v. Natural Resources Defense Council,19 had affected appellate court review of agency action. In Chevron the Supreme Court sent a strong signal to the courts of appeal that they should be more deferential in reviewing interpretations of statutes by administrative agencies. Even before we initiated our study, Chevron had occasioned a great deal of published commentary, most of it viewing (and often denounc17When we ended the data collection in early 1988, two categories of remanded cases remained incomplete: (1) those in which the lawyers had not provided all of the necessary information during the initial and follow-up interviews, and (2) those that had still been “open” (i.e., post-remand activity was still ongoing) at that point. In an effort to include these cases in our data set, we made one final pass at them in August, 1988, well after we had begun our preliminary data analysis. Even at that late date, some three to five years after the remand, we found that a certain number of cases remained in one or both of these categories. We had to drop them from the data set, at least as far as our analyses of post-remand events and evaluation of outcomes were concerned. ,8At the written request of the Administrative Conference of the U.S., each federal agency identified a contact person within the agency (usually in the general counsel’s office) who would help to facilitate the data gathering for the study. The identity of the agency’s and petitioner’s lawyers was also usually obtainable from the published opinions. We generally sought to interview the most junior lawyer listed there. Our assump­ tion—that this would be the lawyer closest to, and most knowledgeable about, the details of the case—proved to be generally correct. Sometimes, of course, the lawyers who were in the best position to answer our questions were no longer employed by the agency or firm. In those cases, the interviewer attempted to locate that lawyer and when that effort failed, the interviewer was almost always able to obtain the desired information from someone else in the agency or law firm who was (or after reviewing the file could become) familiar with the matter. "'470 U.S. 116 (1985).

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ing) the decision as a watershed administrative law ruling that would encourage reviewing courts to defer to agency interpretations and pol­ icy directions, and thereby slow if not reverse the more intrusive pat­ terns of judicial review that had gathered force during the preceding two decades. For that reason, we read cases covering the six-month period preceding Chevron and the six-month period following Chemical Manufacturers Association.20 For purposes of managing and analyzing our data set, we initially divided it into seven subsets of cases, each with its own computerized (Lotus 1-2-3) data file. These seven files were: (1) the 1965 cases (re­ mand and non-rem and),21 which we called “ 65CASES” ; (2) the 197475 cases (remand and non-rem and),22 which we called “ 75CASES” ; (3) the 1984 non-remand cases (defined as those which an appellate court had disposed of without remanding them to the agency), which we called “ 84CASES” ; (4) the 1984 remand cases (defined as those which an appellate court had, in the first instance, rem anded to the agency for further proceedings),23 which we called “ 84REMAND” ; (5) the 1985 non-remand cases, which we called “ 85CASES” ; (6) the 1985 remand cases,24 which we called “ 85REMAND” ; and (7) the 1988 cases,25 which we called “ 88CASES.” T hen, to facilitate those analyses for which the distinctions between remand and non-remand cases or between pre-Chevron and post-Chevron cases were not relevant, we ag­ gregated the 1984 and 1985 cases by creating (8) a merged file of all 1984 cases, which we called “ 84MERGE” ; (9) a merged file of all 1985 cases, which we called “ 85MERGE” ; and (10) a file further combining these merged files, which we called “ 8485ALL.” These ten files con­ tained data that had been generated in two ways: by analyzing the published opinions (with respect to all 1965 and 1974-75 cases and the 1984-85 non-remand cases), and by that kind of opinion analysis plus

20Although this means that we actually read cases covering fiv e time periods, we treat the two six-month periods during 1985 as a single time period for purposes other than that of analyzing the effects of Chevron. 2,The 1965 sample covered cases decided during the six-month period between January 1 and June 30, 1965. 22The 1974-75 sample covered cases decided during the six-month period between October 15, 1974 and April 15, 1975. The latter date was selected as the cutoff date in order to just antedate the Supreme Court’s decision on April 16, 1975 in Natural Resources Defense Council v. Train, 421 U.S. 60 (1975), a case which anticipated Chevron in mandating deference to agency constructions of statutes. 23The 1984 sample (both non-remand and remand cases) covered cases decided during the six-month period between December 25, 1983 and June 25, 1984, the day Chevron was decided. 24The 1985 sample (both non-remand and remand cases) covered cases decided during the six-month period between February 28, 1985 (the day after Chemical M a n ­ ufacturers was decided) and August 31, 1985. 25The 1988 sample covered cases decided during the two-month period between March 1, 1988 and April 30, 1988.

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subsequent telephone interviews (with respect to the 1984 and 1985 remand cases).26 T he 1676 appellate cases that we analyzed for the 1984-85 period were generated in the first instance by almost 50 different administra­ tive agencies.27 Among other things, we hoped to learn whether dif­ ferent agencies generated different patterns of appellate review and handled remands differently. For two reasons, we found it useful to group the agencies for analytical purposes. First, relatively few agen­ cies accounted for a high proportion of the cases studied while the great majority of agencies produced very few.28 This meant that ana­ lyzing the agencies individually would often preclude statistically sig­ nificant findings, while grouping them into larger clusters might avoid this problem. Second, we believed that certain groupings would help us to discern broad patterns that might otherwise remain obscured. Accordingly, we devised nine agency groups and allocated each agency in our data set to one of them .29 The case analyses, interviews, and data recordation were performed under our supervision from early 1987 to March 1989 by a group of 2ers (1996); Richardson and Sunkin, “Judicial Review: Questions of Impact” [1996] P.L. 79—103. 3 Bridges et al., Legality and Local Politics, (1987); Sunkin and Le Sueur, “Can Government Control Judicial Review?” (1991) 44 Current Legal Problems 161-183; Obadina, “The Impact ofjudicial Review on Local Authority Decision-Making” (PhD Thesis, University of Wales, 1988); Mullen, Pick and Prosser, Judicial Review in Scotland, (1996); Buck, “Judicial Review and the Discretionary Social Fund” in Buck, T. (ed) Judicial Revieu' and Social Welfare, (1998). Loveland’s, Housing Homeless Persons (1995), although broader in its aims, also contains empirical data on this question. 4 Halliday, “Judicial Review and Administrative Justice: a study of administrative decision-making in three local government homeless persons units” (PhD thesis, University of Strachclyde, 1999). 5 During fieldwork the legislation concerning homelessness rights changed. The relevant legislation, therefore, is the Housing Act 1985, Part III, and then the Housing Act 1996, Part VII. 6 Richardson and Sunkin, “Judicial Review: Questions of Impact” [1996] P.L. 79-103; Mullen, Pick and Prosser, Judicial Review in Scotland (1996). [2000] P.L. S pring © Sweet & M axwell

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Administrative Law The Influence of Judicial Review on Bureaucratic Decision-Making

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the impact—what might be called the “extreme case scenario”. By focusing on administrative agencies which, amongst their peers, were particularly experi­ enced in defending judicial reviews, it was possible to test the hypothesis that judicial review has a “hortatory role” 7 and that it would be in these agencies, if anywhere, that judicial review would have an impact. To understand fully administrative law and the impact of judicial review we must investigate how it is operationalised in the routine work of bureaucrats. Our understanding of the influence of judicial review must be rooted in a sociological understanding of how law and experiences of litigation are understood and translated into bureaucratic behaviour.8 The method adopted in this project, therefore, was to construct ethnographic images of the decision­ making cultures of three heavily litigated local authorities.9 Such a method permits a comparison between law’s image of bureaucratic justice and the social reality of decision-making in organisations which have been repeatedly scrutinised by the courts. The research, then, was concerned with decision-making processes and whether or to what extent such processes embraced and displayed the characteristics of bureaucratic justice. Law’s image of bureaucratic justice corresponds to the principles of administrative law, or the grounds of judicial review. Care, of course, must be taken when discussing doctrinal grounds of judicial review. The grounds should not be taken as being conceptually robust and mutually exclusive.10 The jurisprudence of the court concerning the precise implications ofjudicial review’s legal principles may also vary according to the areas of administration being reviewed.11 It is suggested, however, that despite these caveats, it is possible to propose a set of values which, as a whole, correspond to a legal picture ofjust administration and which may be useful for the purposes of this research (at least in relation to homelessness law).12 A group of six values may be suggested: • real discretion • relevant deliberation • reasonableness 7 See Loveland, Housing Homeless Persons (1995), 280. For an optimistic account of the hortatory effects ofjudicial review sec, Hammond, “Judicial Review: the continuing interplay between law and policy” [1998] P.L. 34-43;