Monday, 14 April 2014

Sunstein on Breyer on Reasoned Decision-making

Cass Sunstein has a nice short essay on Justice Breyer in a forthcoming issue of the Harvard Law Review, "From Technocrat to Democrat":
There is an epistemic argument for judicial deference to the decisions of administrative agencies and legislatures: courts do not have easy access to relevant information, and they should defer to those who do. People who are steeped in technical issues, and alert to the importance of those issues, might well be inclined to embrace judicial modesty. In administrative law, then-Professor Stephen Breyer pioneered the view that judge-made doctrines reflect unarticulated assumptions about regulatory policy, and he urged that such doctrines could not be evaluated without a sense of the underlying substance and the likely human consequences. In light of the complexity of the substance, Breyer argued for a degree of modesty. On the Supreme Court, Justice Breyer has often embraced judicial modesty as well, emphasizing the importance and relevance of complex judgments of fact (sometimes with the aid of what we might call "the Breyer Appendix"). The principal qualification is his insistence on reasoned decision making, which he appears to regard as a quid pro quo for deference, as an aspect of the rule of law, and as an indispensable check on arbitrariness.
Reasoned decision-making as a condition precedent to deference is an increasingly attractive proposition in Canada, where affidavits and agency litigating positions can be used to place a decision-maker's thumb on the interpretive scales. 

To borrow from Sunstein:
The most important point here is that an agency may not defend its policy simply by asserting its preference. It has to offer reasons. To be sure, there is a risk that a judicial demand for reasoned decision making will serve, in practice, as a judicial demand for reasons with which judges agree...Nonetheless, a requirement of reason-giving can be seen as an effort to ensure that technical expertise is in fact being applied...
As Sunstein suggests, the presence of a reasoned decision may be a good proxy for the application of administrative expertise. It is interesting that the recent decline in importance of relative expertise in Canadian doctrine has coincided with the decline in importance of reasoned decision-making.


  1. It's always bothered me that the SCC happily adopted Dyzenhaus' "respectful attention to the reasons that were, or could have been, offered" (too lazy to check if this is the exact quote but it's at least right in substance!) formulation for deference and then done so little to encourage reasoned decisionmaking. Even Newfoundland Nurses, which brings reasons to the fore as an explicit part of the reasonableness calculation, asks the "or could have been offered" part of that formulation - there's no demand for consistently reasoned decisions. All seems rather inconsistent with the supposedly applicable approach to review since Baker.

  2. To be fair, Newfoundland Nurses involved the review of an arbitration decision and responded to a particular problem: interventionist judges fastening on minor missteps in order to characterize a decision as unreasonable. That was inappropriate and deserved a response.

    But Newfoundland Nurses, and para. 48 of Dunsmuir, have now been taken as authorizing haphazard decision-making which reduces public law to a one-way assertion of authority: "Here is the record, here is our conclusion". Hard to get further from deference as respect...