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Unpublished Paper
Limiting Judges: Placing Limits on Judges' Power in Hard Look Review
ExpressO (2009)
  • Tobias R Coleman
Abstract
The “hard look” standard of review in administrative law has long provided judges broad discretion to strike down agency actions. The virtually unlimited nature of hard look review creates the danger that judges will craft decisions to achieve their desired policy outcomes. Though judges have acknowledged that this potential for outcome-oriented decisionmaking exists, they have consistently downplayed the danger of outcome-oriented decisionmaking—despite empirical evidence showing otherwise. One practical way to reduce the danger of outcome-oriented decisionmaking in hard look review is to place limit on judges’ powers. In FCC v. Fox Television Stations, Inc., the Supreme Court began to explore the possibility of limiting judges’ hard look review powers. The result was a vague standard that could limit some powers, but might ultimately be too vague to serve as a concrete standard of review. Though the idea of limiting judges’ hard-look review powers has some promise, the effort might be undermined by the judiciary’s inability to accurately assess the risk of outcome-oriented decisionmaking.
Keywords
  • Hard Look Review,
  • Supreme Court
Disciplines
Publication Date
September 5, 2009
Citation Information
Tobias R Coleman. "Limiting Judges: Placing Limits on Judges' Power in Hard Look Review" ExpressO (2009)
Available at: http://works.bepress.com/tobias_coleman/1/