An Outcomes Analysis of Scope of Review Standards

TABLE OF CONTENTS INTRODUCTION I. SCOPE OF REVIEW A. The Art of Scope of Review B. The Administrative Procedure Act as a Guide C. Congressionally Defined Scope of Review Standards D. Unpredictability of Reversal Rates II. THE SUPREME COURT BELIEVES THESE WORDS MATTER A. Contrasting the Outcome Effect of Standards of Proof B. Standards of Proof and Scope of Review Compared C. Scope of Review in Other Settings III. SCOPE OF REVIEW IN CONTEXT: SOCIAL SECURITY DISABILITY, VETERANS DISABILITY, AND THE FREEDOM OF INFORMATION ACT A. Social Security Administration Disability Cases B. Veterans Disability Claims C. Freedom of Information Act Cases 1. The Special Case of Exemption 1 2. Judicial Views About Freedom of Information Act 3. Comparison to Reverse-Freedom of Information Act Cases D. Summary IV. JUDICIAL REVIEW OF SENTENCING DECISIONS V. LESSONS IN SCOPE OF REVIEW FOR THE SUPREME COURT AND CONGRESS A. Reassessing Social Security Administration Disability Review 1. The Supreme Court's Role: Tinkering with the Substantial Evidence Test 2. The Role of Congress: Changing the Structure of Review 3. Role of the Agency: Managing, Not Dictating, Outcomes B. Reassessing Freedom of Information Act Review 1. The Supreme Court's Role in Setting the Tone 2. Congressional Alternatives 3. Role of Agencies and the Department of Justice in Freedom of Information Act Review CONCLUSION APPENDIX A APPENDIX B Under existing standards, then, the courts may narrow their review to satisfy the demands for administrative discretion, and they may broaden it close to the point of substituting their judgment for that of the administrative agency. (1) After fifty years ... we have yet to agree on how this review should operate in practice. We are still struggling with where to draw the line between obsequious deference and intrusive scrutiny. (2) INTRODUCTION The purpose of calibrating the breadth--or scope--of judicial review over fact finding by administrative agencies is ultimately to allocate decision-making responsibility between the executive and judicial branches. Because Congress usually makes these decisions, all three branches have a stake in the process. In assigning oversight responsibilities, Congress makes a choice: it weighs the desire for efficient and timely agency action against the need to ensure consistent and fair decision making. In balancing these considerations, Congress intends factual support for agency decisions to be subject to varying levels of scrutiny or, on occasion, to be free from scrutiny. (3) Straightforward enough, one would think. Yet, as the introductory quotes suggest, after all these years, reviewing judges are still struggling to make sense of these standards, especially as they apply to scope of review of facts or of law and policy. (4) I. SCOPE OF REVIEW It is doubtful that Congress wants scope of review to be an irrelevant labeling exercise. Instead, one might reasonably expect that Congress wants outcomes, defined in terms of affirmances, remands, and reversals of agency actions, to vary according to the scope of review standard chosen (or at least to find some judicial recognition of these expectations). But it seems the question is rarely asked and its premise remains unexamined. To explore the relationship of to standards, this Article makes a preliminary attempt to measure against the relevant scope of review provisions. This outcomes analysis produces some intriguing correlations between results and formulas, along with some surprises that themselves serve to raise more questions. Although such an exercise can never produce total agreement about how scope of review standards should operate, it facilitates a better understanding of why Congress differentiates among these standards and why the lesson sometimes is lost on the courts. …