I’ve just started teaching “standards of review” in my administrative law course, and as admin maven Richard Murphy has noted, pinning down the doctrine can feel like “lassoing smoke.” Even the top scholars in the field appear to disagree on basic premises. I think the nub of the difficulty has to do with the “meta-” ness of the enterprise. When a court tries to determine if agency action is “arbitrary and capricious,” it’s often assessing the head of the agency’s beliefs about an ALJ’s beliefs about the parties’ beliefs about the matter at issue.
Obviously this problem occurs elsewhere in law, and there are many deference standards that try to address it. Perhaps in line with Lawrence Rosen’s work on the cultural influence of law, I’m beginning to think some of these standards are filtering into academic and public discourse. One can “map” some controversies as boiling down to points about the deference certain beliefs are owed. For example,
1. Belief: A majority of Americans believe in God.
4. Belief about belief about belief about belief: Others intervene. (Leiter on Wieseltier on Dennett).
The debate can be a little dizzying, but as Eagleton notes, it’s often necessary to “repudiate the brand of mealy-mouthed liberalism which believes that one has to respect other people’s silly or obnoxious ideas just because they are other people’s.” Nevertheless, Eagleton cautions how projects like Dawkins’ risk making a category mistake about the phenomenon they attempt to discredit:
[T]o claim that science and religion pose different questions to the world is . . . to claim that while faith, rather like love, must involve factual knowledge, it is not reducible to it. For my claim to love you to be coherent, I must be able to explain what it is about you that justifies it; but my bank manager might agree with my dewy-eyed description of you without being in love with you himself.
In other words, in a pluralistic society, we’re all obliged to develop the capacity to respect varieties of personal knowledge. . . . without, of course, falling into radical skepticism. I think the difficulty of that balance mirrors the difficulty of developing any coherent account of deference doctrine in admin (which, as Murphy notes, is “a complex brew of improbable fictions and proceduralism”).
Photo Credit: Flickr/B. Jones.