Notice & Comment

Carissa Hessick on the Presumption of Regularity

One doctrine that often comes up in challenges to government actions is the presumption of regularity. Under the presumption, courts assume that government officials properly discharged their official duties unless there is evidence showing otherwise.  Courts have invoked it to give the government the benefit of the doubt in challenges to agency actions. If there are both good and bad possible justifications for the agency’s action, the court will assume that the good ones motivated the action. But the presumption’s application is not limited to that circumstance. Courts have cited the presumption in all sorts of contexts, relying on it to limit discovery in actions against the government, to reject collateral attacks on court orders, and even to sustain some government actions that pretty clearly failed to comply with statutory requirements.

Despite its widespread application, the source of the presumption is less clear. Carissa Hessick has an excellent post here on Prawfsblawg that digs into that topic. The post tracks down the history of the presumption and does a good job of showing that the current form of the presumption is a long way from its original form.  Along the way, it raises some thoughtful questions about how we should regard the presumption.

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