Rule by Reasonableness

Administrative law’s complicated jurisprudence on standards of review is both a mess, in that it lacks coherence, and a distraction, in that courts affirm agencies slightly more than two-thirds of the time regardless of the doctrine deployed. It would be better to replace the jurisprudence with a reasonable agency standard. Such a standard would simplify and clarify administrative law, better describe what courts actually do when confronted with agency action, and better explain the judicial role in the administrative state. Rule by reasonableness is, moreover, the rule in negligence law, Fourth Amendment law, and arguably in financial regulation as well.

Although a broad standard, reasonableness has created a tractable, predictable, and realistic jurisprudence in these areas; administrative law would do well to heed these lessons.