Last month, UCLA law professor Sam Bray posted his essay, “On Doctrines That Do Many Things.” The essay does not address administrative or regulatory law directly, but it is well worth the read and certainly worth blogging about here for a few reasons.
First, the essay is a sadly neglected genre of legal scholarship. There ought to be room in law reviews for work that takes a 30,000-foot view of an issue without laboriously footnoting, qualifying, or otherwise bludgeoning the topic into submission. Some ideas are also worth discussing or presenting even if it does not take 25,000 words to do so. And the essay lends itself to great writing. Karl Llewellyn wrote about the “Grand Style” of judicial opinion writing; I think there is a similar Grand Style of academic writing, though Llewellyn’s hobbledehoy prose often fell short of it. The writing presents big ideas in a lightly footnoted and highly readable fashion. It’s writing like that that inclines people to read The Green Bag cover to cover in a way few peruse the latest issue of a top-tier student journal. Stylistically, Fuller, Bickel, Dworkin, Wechsler, Henry Hart, and form-and-substance-era Duncan Kennedy come to mind here. We’re not bereft of good writing in today’s academy, but these days it is hard to write in the Grand Style at article length and get editors to take it seriously, especially if you are not a lion of the profession. The essay seems more permissive along those lines. I hope more authors and editors give the form a shot.
Second, Bray’s essay, in addition to being a great read, tees up a great question: when should we prefer legal doctrines that do many things as opposed to doctrines designed with one specific use in mind? By analogy, he compares the kitchen knife and the garlic press. A kitchen knife, some say, does not slice garlic as well as a press, but it can do other things a garlic press cannot. We can imagine a kitchen full of dozens of specialized tools, all of which work better than a simple knife for any given task, but there are also costs to the specialization: clutter, expense, lack of flexibility, risk of obsolescence, and time spent deciding while tool to use.
Legal doctrines, Bray argues, present similar tradeoffs. He identifies multifunction doctrines like standing, the constructive trust, the collateral source rule, strict scrutiny, principles of textual interpretation, and even judicial review. He also identifies two patterns in the competing approaches to such doctrines. Academics tend to be impatient with multi-function doctrines, seeking to deconstruct or dissolve them into distinct doctrines bespoke for particular functions. Judges, on the other hand, are more tolerant of multifunction doctrines, which give them the flexibility to modulate their use depending on the circumstances. We have here an academy/bench divide between analytical precision and craft knowledge, intellectual splitters versus practical lumpers. Bray does not come down on hard on which way is better, though he suggests academics should question their instinctive urge to break down multifunction doctrines. Rather, he wisely argues that we need to think about whether a multifunction or discrete doctrine is better in a given context, exploring the “distinct demand, the different parsimonies” of the particular legal setting.
Third, this insight can shed light on administrative law. The first doctrine that came to mind here is arbitrary and capricious review. My understanding of the doctrine is heavily influenced by Gary Lawson’s story about the evolution of hard look review on the D.C. Circuit. Judge Leventhal wanted the courts to roll up their sleeves and explore the substantive rationality of an agency’s policy decision. Judge Bazelon, worried about judicial competence on that end, thought courts should focus on ensuring agencies used procedures that tended toward good outcomes. The resulting “Great Compromise,” as Lawson dubs it, is a doctrine that focuses on the agency’s reasoning process, incorporating aspects of both substantive and procedural review.
One response to arbitrary and capricious review as we know it, then, is that it is incoherent. Or we could conclude that such a doctrine in the hands of judges with wide experience and craft wisdom (most prominently, the D.C. Circuit) may work just fine, since different cases raise different concerns about arbitrariness. Even though I’m skeptical about the extent of Leventhal’s faith in judicial review of policy outcomes, I am pretty sanguine about how arbitrary and capricious review operates in the average run of the cases. In fact, because I am skeptical of Full Leventhal, I am happy that his approach is lumped in with other arbitrariness concerns. A freestanding doctrine of substantive rationality review would risk either running amok or it would, in the words of Bray, develop into a deadletter “Jurisprudence of No,” which might bless the rare case in which even cautious judges can be confident of substantive irrationality. The current arbitrariness regime yokes the impulse for substantive review to a more modest, process-based approach to judicial review, domesticating it, while not depriving it of teeth for the few times we really want it to bite.