In its ideal form, arbitrariness review is an instrument for promoting
“deliberative democracy”—a system that combines reason-giving with political
accountability. Under arbitrariness review in its current form, courts tend to embrace
the “hard look doctrine,” which has a procedural component, requiring agencies to
offer detailed justifications, and also a substantive component, in which courts assess
the reasonableness of agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in
government, in which scientific and economic judgments are overridden by political
considerations. With respect to regulatory policy, it is not enough to say that “elections
have consequences.”
Volume 170Issue 4 2022 Article