J. E. Colburn
Contemporary Pragmatism (1 December 2012)
Arbitrariness review of agency rulemakings has long set “political” influences aside as a special case worthy of special scrutiny. This essay argues that the orthodox account of arbitrariness review in this vein makes some untenable assumptions about both reviewing courts and agencies as agents. If we seek more agency responsiveness to reason rightly defined, then reviewing courts must begin devoting more (scarce) cognitive resources to the monitoring of agencies' behaviors over time. Reviewing courts should encourage agencies to organize themselves in order to learn-by-doing. This will probably entail paying less attention to the separation of law from fact, science from politics, and judgment from justification.