Is the Question of Deference Only an Administrative Law Issue? [No. 86]
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Is the Question of Deference Only an Administrative Law Issue? [No. 86]


One of the major questions in administrative
law is the extent to which courts, when they’re reviewing administrative agency decisions,
should be deferring or giving weight to the decision of the agency. Should the court just decide the issues in
whatever way the court thinks is best or should the court be looking to see whether the agency
satisfies some minimal standard of reasonableness and letting the agency go as long as that
standard is met? This is the battleground on which a lot of
the major doctrinal issues are fought. It turns out to be something not at all unique
to administrative law or even to law at all. Any kind of organization whether it’s a government,
a business, even a family, is likely to have a layered process of decision making. Decisions are made, then the decision gets
reconsidered or examined at another level. Whenever you have that kind of layered process,
it’s always important to ask at any given level, “What relevance is it that someone
else has already considered that question?” That’s the issue. If it matters at all that someone else has
already considered that question, then you’re dealing with a regime of deference. Some measure of weight, however large, however
small, being given to the fact that someone else has already thought about and considered
this problem. So what the courts are faced with when their
reviewing agency decisions is nothing special. This is a universal feature of human affairs.

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