
Contents
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3 System Justification Theory and Research: Implications for Law, Legal Advocacy, and Social Justice
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I. Politicized Administrative Law: Evidence I. Politicized Administrative Law: Evidence
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A. Method A. Method
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B. Courts of Appeals: Chevron Cases B. Courts of Appeals: Chevron Cases
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C. Courts of Appeals: Arbitrariness Cases C. Courts of Appeals: Arbitrariness Cases
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D. The Supreme Court D. The Supreme Court
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1. The least and most partisan justices 1. The least and most partisan justices
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2. Conservative partisans, liberal partisans 2. Conservative partisans, liberal partisans
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3. A brief note on politics, judicial review, and the future. 3. A brief note on politics, judicial review, and the future.
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II. Five Matters of Interpretation II. Five Matters of Interpretation
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A. Who Is Partisan? A. Who Is Partisan?
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B. How Large a Problem? B. How Large a Problem?
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C. Ex Ante vs. Ex Post C. Ex Ante vs. Ex Post
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D. Invalidations or Validations? D. Invalidations or Validations?
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E. Second-Order Diversity E. Second-Order Diversity
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III. Solutions III. Solutions
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A. Self-Correction A. Self-Correction
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1. Knowledge as corrective, sunlight as disinfectant 1. Knowledge as corrective, sunlight as disinfectant
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2. Warning flags and reviewing the reviewers 2. Warning flags and reviewing the reviewers
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3. Political rankings 3. Political rankings
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B. Doctrinal Solutions B. Doctrinal Solutions
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1. Rethinking Mead 1. Rethinking Mead
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2. Increased deference 2. Increased deference
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C. Institutional Solutions C. Institutional Solutions
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1. Clearer statutes 1. Clearer statutes
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2. Super-majorities 2. Super-majorities
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3. Mixed panels 3. Mixed panels
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IV. Conclusion IV. Conclusion
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Notes Notes
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Reference Reference
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21 Depoliticizing Administrative Law
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Published:January 2012
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Abstract
A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized in both the federal courts of appeals and the Supreme Court. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for “arbitrariness” on questions of policy and fact. The empirical results raise an obvious question: what might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of “debiasing” that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.
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