Volume 96
Reasonable Agencies
THIS Article argues that the complex doctrine of judicial review of administrative action—containing no less than six separate tests depending on the sort of agency action to be reviewed—both descriptively is and normatively should be simplified into a “reasonable agency” standard. Courts, following step two of the Chevron doctrine, have started to sneak a reasonableness standard into their review in lieu of making the difficult distinctions required by current doctrine. Scholars evaluating the difference among the various doctrinal tests have started to note the increasing similarity among the tests, at least as applied by the courts. Empirical research, to which this Article contributes an additional study, suggests that regardless of the standard of review, courts affirm agencies’ actions slightly more than two thirds of the time; the variance of the validation rates of agency action, regardless of the standard of review, is small. A reasonable agency standard would simplify and clarify administrative law, better describe what courts actually do when confronted with agency action, and better explain the judicial role in the administrative state.
Close Enough for Government Work: The Committee Rulemaking Game
PROCEDURAL rules in U.S. courts often have predictable and systemic substantive consequences. Yet the vast majority of procedural rules are drafted, debated, and ultimately enacted by a committee rulemaking process substantially removed from significant legislative or executive supervision. This Article explores the dynamics of the committee rulemaking process through a gametheoretical lens. The model reveals that inferior players in the committee rulemaking game—advisory committees, the Standing Committee on Rules of Practice and Procedure, the Judicial Conference, and the Supreme Court—are sometimes able to arbitrage congressional transaction costs to obtain results at odds with the results. Congress would prefer in a world without transaction costs. This Article presents two real-world examples of possible transaction-cost arbitrage, one involving the 1993 adoption of the “initial disclosures” requirement under the Federal Rules of Civil Procedure, and one involving the implementation of the “means test” requirement of the 2005 bankruptcy reform statute. Though the normative implications of committee rulemaking are ambiguous, the dynamics of the game suggest that a better preference fit between Congress and the membership of the various advisory committees would mitigate the risks of transaction cost arbitrage substantially, while retaining most of the advantages of the committee rulemaking system.