Deconstructing Arbitrary and Capricious Review

BY Louis J. Virelli III

Arbitrary and capricious—or “hard look”—review is a legitimizing force in a political and legal environment that is increasingly hostile to administrative government. It employs principles of judicial deference to balance the authority of courts and agencies in pursuit of rational, transparent policymaking. It is thus no surprise that arbitrary and capricious review is a recurring topic of debate for both courts and commentators. Despite this active focus on hard look review, however, a crucial point has been overlooked. Existing scholarship overwhelmingly portrays arbitrary and capricious review as one-dimensional—as applying the same standard in the same way across all manner of agency conduct. This Article offers a new perspective that represents a potentially transformative view of arbitrary and capricious review. It reconceptualizes hard look review as a multi-dimensional expression of judicial deference and argues that arbitrariness review is both more effective and more easily justified when it is “deconstructed”—when it first divides administrative policymaking into its constituent parts, such as record building, reason giving, input scope and quality, and rationality. This deconstruction of arbitrary and capricious review exposes it for what it should be: a collection of more particularized inquiries into specific components of agency decisionmaking.  Deconstruction is useful for several reasons. It provides a new theoretical framework for arbitrary and capricious review.  This framework allows us to evaluate the deconstructed components of agency conduct against the underlying principles of judicial deference and goals of hard look review to develop a dynamic view of arbitrariness review that tailors judicial deference to discrete aspects of agency decisionmaking. Deconstruction also reveals institutional and systemic benefits to viewing hard look review as a multidimensional exercise.  Understanding these benefits of deconstruction increases our appreciation of how hard look review should be utilized in different contexts and of when courts should defer to the political branches more generally.

DOWNLOAD PDF | 92 N.C. L. Rev. 721 (2014)