March 2011 Vol. 109 No. 5 THE REVIEW

Super Deference, the Science Obsession, and Judicial Review as Translation of Agency Science

Emily Hammond Meazell

When courts review agencies' scientific and technical determinations, they often emphasize that the specialized subject matter requires them to be at their most deferential. This "super-deference" principle seems appealing because it is supported by basic notions of institutional competence and accommodates a natural judicial tendency to avoid deep encounters with science. But it stands in stark tension with the expectation that courts must reinforce administrative-law values like participation, transparency, and deliberation. And it fails to further the legitimizing function of incorporating the best possible science into institutional decision-making. Surprisingly, there is no scholarship comprehensively assessing super deference. This Article begins to fill that gap by evaluating super deference contextually, taking into consideration the norms of both science and administrative law. This analysis reveals that not only does super deference lack merit, it also lacks a clear meaning and a framework for principled application. Further, it has fallen into disuse, giving way to traditional hard -look review. Building on these observations, this Article develops a normative account of the courts' role with respect to agency science. When courts engage in such review, they can use their generalist perspectives to their advantage by serving an important translating function for generalist consumers such as Congress and the public at large-an approach that reinforces both scientific and administrative -law values.

   //  VIEW PDF
& Other Current Events

Crawford v. Washington: A Ten Year Retrospective

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation...

Come Back to the Boat, Justice Breyer!

I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly...

Crawford v. Washington: The Next Ten Years

Imagine a world . . . in which the Supreme Court got it right the first time. That is,...

The Crawford Debacle

First a toast-to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the...

Confrontation and the Re-Privatization of Domestic Violence

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution...
MAILING LIST
Sign Up to Join Our Mailing List