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Mashaw, Jerry --- "The rise of reason giving in American administrative law" [2017] ELECD 1097; in Rose-Ackerman, Susan; Lindseth, L. Peter; Emerson, Blake (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2017) 268

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter; Emerson, Blake

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781784718657

Section: Chapter 16

Section Title: The rise of reason giving in American administrative law

Author(s): Mashaw, Jerry

Number of pages: 16

Abstract/Description:

From the founding through most of the 19th century judicial review of official action in the U.S. federal courts eschewed any inquiry into the reasonableness of administrative decision-making. Review was by a writ (mandamus or injunction) or by a damage action against the official. In the former case the only question was whether the action was authorized and involved any exercise of discretion. If so, the writ would not lie. In damage actions courts or juries determined de novo whether the official had behaved properly. Reasonableness was generally not a defense to legal or factual error. Today reasonableness, judged almost exclusively on the basis of an agency or official’s reasons provided contemporaneously with the challenged official action, is the overwhelmingly dominate ground for judicial review of administrative action and the basic criterion for judging official immunity from suits against officials for damages. This chapter traces the tortuous path by which a constitutionally suspect standard for administrative legality became the crucial vehicle for managing the appropriate roles of agencies and reviewing courts in the modern American administrative state.