Over at Jotwell, Kathryn Watts reviews my co-blogger Nick Bagley’s latest article, Remedial Restraint in Administrative Law, which is forthcoming in the Columbia Law Review. We need more scholarly discussion on remedies in administrative law — Sam Bray’s new paper on nationwide injunctions comes immediately to mind — and Professor Watts’s review and Nick’s article are terrific reads.
Here’s a summary of Nick’s article, from the SSRN abstract:
When a court determines that an agency action violates the Administrative Procedure Act, the conventional remedy is to invalidate the action and remand to the agency. Only rarely will the courts entertain the possibility of holding agency errors harmless. The courts’ strict approach to error holds some appeal: better a hard rule that encourages procedural fastidiousness than a remedial standard that might tempt agencies to cut corners. But the benefits of this rule-bound approach are more elusive, and the costs much larger, than is commonly assumed. Across a wide range of cases, the reflexive invalidation of agency action appears wildly excessive. Although the adoption of a context-sensitive remedial standard would increase decision costs and generate inconsistency, the exercise of remedial restraint in appropriate cases may prove superior to a clumsy approach that treats every transgression as worthy of equal sanction.
And here’s a taste of Professor Watts’ review, entitled Rethinking Remedies:
We have all heard the saying that you “don’t need a sledgehammer to kill a gnat.” Yet, when it comes to fashioning remedies for agencies’ transgressions of administrative law principles, the courts often use the equivalent of legal sledgehammers to remedy agency transgressions—no matter how minor the transgressions. This, at least, is the picture painted by Professor Nicholas Bagley in his draft article titled Remedial Restraint in Administrative Law, which will be published in 2017 in the Columbia Law Review.
. . .
Despite these reasons for strongly encouraging you to read Professor Bagley’s thought provoking piece, I must confess that, in the end, I was not convinced by Professor Bagley’s central argument, which contends that courts should replace the current rule-like approach to remedies with a much more context-specific, flexible, standard-based approach. For one thing, I am far less confident than Professor Bagley that agencies would not be tempted to cut important procedural corners if they thought that courts might excuse their mistakes (innocent or otherwise) after the fact. In addition, I worry about the potential harm that could be done to administrative legitimacy—specifically, to the public’s perception of the quality and legitimacy of the administrative state—if courts develop a variety of flexible standards. Procedural fastidiousness, in my mind, plays a very important role in bolstering public perceptions of agency legitimacy and attending to agencies’ democracy deficit.
Both the review and the article are definitely worth a close read. If you’re still craving more, the Columbia Law Review editors invited me to respond to Nick’s article, and I’ve posted a draft of that response, entitled Against Remedial Restraint in Administrative Law, on SSRN here. Here’s the short version of my response, from the SSRN abstract:
This Response agrees that administrative law should focus more on remedies. But of all the serious challenges facing the regulatory state today, the lack of this particular type of remedial restraint is not among them. To the contrary, the current rule-based ordinary remand rule plays an important role in preserving a proper separation of powers, in ensuring agencies exercise their congressionally delegated discretion in a nonarbitrary manner, and in facilitating a richer court–agency dialogue that allows courts to have a systemic effect on the administrative process. The benefits of the ordinary remand rule exceed any benefits of a more restrained, standard-like remedial approach. And the current rule avoids the costs of courts assessing, for instance, whether regulation by press leakage or regulation by Twitter could be an acceptable, harmless substitute for notice-and-comment rulemaking.
This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.