Law Commons^™

Energy Deference, Sharon B. Jacobs

Publications

Electricity law is complex, and the Supreme Court knows it. Lawyers are familiar with the adage that generalist courts tend to defer to agency decisions where the subject matter is complex or technical. But what features of a case make the Court more or less likely to defer to the agency's judgment? And how exactly do deference regimes work in the presence of complexity? This essay offers insights gleaned from Court's opinion in Federal Energy Regulatory Commission v. Electric Power Supply Ass’n (“EPSA”). It explains, first, that Courts are highly deferential in energy cases due to both the complexity of …

Judicial Review Of Petitions, Cynthia R. Farina

Cynthia R. Farina

Senate bill 343, at least, is careful to say that upon denial of a petition, the denial should be deemed "agency action" for purposes of judicial review. Only at one point in the legislation does the statute speak explicitly to the standard, and that's with respect to the petition for putting an existing major rule on the schedule for analysis. The bill says that the agency's action shall be overturned by the court only on the determination that the action was arbitrary and capricious or an abuse of discretion, which is what we assumed the standard would have been for …

Proposing A Place For Politics In Arbitrary And Capricious Review, Kathryn A. Watts

Articles

Current conceptions of “arbitrary and capricious” review focus on whether agencies have adequately explained their decisions in statutory, factual, scientific, or otherwise technocratic terms. Courts, agencies, and scholars alike, accordingly, generally have accepted the notion that influences from political actors, including the President and Congress, cannot properly help to explain administrative action for purposes of arbitrary and capricious review. This means that agencies today tend to sweep political influences under the rug even when such influences offer the most rational explanation for the action.

This Article argues that this picture should change. Specifically, this Article argues for expanding current conceptions …

Judicial Review Of Petitions, Cynthia R. Farina

Cornell Law Faculty Publications

Senate bill 343, at least, is careful to say that upon denial of a petition, the denial should be deemed "agency action" for purposes of judicial review. Only at one point in the legislation does the statute speak explicitly to the standard, and that's with respect to the petition for putting an existing major rule on the schedule for analysis. The bill says that the agency's action shall be overturned by the court only on the determination that the action was arbitrary and capricious or an abuse of discretion, which is what we assumed the standard would have been for …