Administrative Law Symposium: Question & Answer with Professors Elliott, Strauss, and Sunstein

DP: Before you get your chance at questions, Peter said enough to provoke a request from Cass Sunstein for three minutes of rebuttal time, which I have granted. CS: I was uncharacteristically cautious, wasn't I? The three major cases that divide contemporary ideas about administrative law have to be Chevron, I State Farm,2 and Heckler v. Chaney, 3 right? Chevron on deference to agency determinations of law, State Farm on the hard look doctrine, Heckler v. Chaney against agency inaction. I think Chevron's analysis was badly off, State Farm was basically right, and I think Heckler v. Chaney points in the wrong direction in drawing this sharp distinction between action and inaction. In understanding why I think that, I think Peter is exactly right in pointing to the systemic ex ante effects of judicial review. Most of the real world is affected by these three cases not because of "bubbles" and passive restraints and drugs being injected and people are going to be executed as a result-those are important, yes, but administrative law now is done day to day in the shadow of these three cases. That's the systemic ex ante effect and that is huge. Now, Don's data are extremely interesting and important. When thinking about the impact of judicial review, one wants to think also about the systemic ex ante effect.