Legislative Reform of Judicial Review of Agency Actions

Abstract

Sidney Shapiro and Richard Levy have provided an excellent vehicle for discussing the present state of the relationship between agencies and reviewing courts and of potential methods of improving that relationship.' Their study of the history of judicial review of agency action supports their conclusion that many of the legal doctrines applicable to that process are indeterminate to an unusual degree2-a court often can write an opinion that reverses a major agency action as easily as it can write an opinion that upholds the same action. We do not see, and would not long tolerate, this degree of indeterminacy with respect to the basic doctrines that govern other fields of law. Imagine, for instance, a world in which the concepts of offer and acceptance are so malleable that parties who attempt to enter into a contract can do no better than to predict that there is a 50% probability that a court eventually will hold that their conduct created an enforceable contractual relationship. If such a legal environment seems both unimaginable and intolerable, you are in a position to empathize with a federal agency that must attempt to issue a major rule that is subject to judicial review through application of the judicial review provisions of the Administrative Procedure Act (APA).3 If the agency does everything it believes that it must do to issue such a rule, the probability that the rule will be upheld is less than 50%.4 Moreover, the variable that best explains the pattern of judicial decisions that uphold or reverse major rules is the