Reason and Reasonableness in Review of Agency Decisions

Jeffrey A. Pojanowski, University of Virginia - Main Campus

Abstract

Provisions of federal statutes often incorporate common law terms and concepts. Federal courts interpreting these provisions usually do not look to the law of any particular jurisdiction, but rather apply general rules and principles of the common law. Federal agencies also administer statutes with embedded common law, and it is unclear how much respect, if any, reviewing courts should give to agency interpretations of those incorporated rules and principles. This Article examines this problem with the aim of situating deference doctrine in broader debates about the character of legal reasoning. Drawing on both common law theory and institutional analysis, this Article argues that the quandary of agency interpretations of common law touches on a fault line in the judiciary’s thinking about deference and the nature of law. Courts’ doubts about their ability to resolve difficult questions without issuing legislative-like commands often lead them to accept merely reasonable agency interpretations, while the inherited common law notion of law aspiring to reason pretermits courts’ complete retreat from all legal ambiguity. This tension lurks just below the surface of much discussion of administrative law doctrine and scholarship and is a fundamental source of the oft-noted confusion in deference doctrine. Confronting this tension is a crucial first step for shaping a coherent deference regime, or at least recognizing the limits of any such doctrine’s theoretical purity.