Some Thoughts on Rational Decision-making

Adrian Vermeule has a new paper, Rationally Arbitrary Decisions (in Administrative Law). Here is the abstract:

How should administrative law cope with genuine uncertainty, in which probabilities cannot be attached to outcomes? I argue that there is an important category of agency decisions under uncertainty is which it is rational to be arbitrary. Rational arbitrariness arises when no first-order reason can be given for the agency’s choice one way or another within a certain domain, yet the agency has valid second-order reasons to make some choice or other. When these conditions obtain, even coin-flipping may be a perfectly rational strategy of decisionmaking for agencies.

Courts should defer to rationally arbitrary decisions by agencies. There is a proper role for courts in ensuring that agencies have adequately invested resources in information-gathering, which may dispel uncertainty. Yet in some cases the value of further investments in information-gathering will itself be genuinely uncertain. If so, courts should defer to agencies’ second-order choices about informational investments on the same grounds that justify deference to agencies’ first-order choices under uncertainty.

The idea that coin flipping might be a rational decision-making process is provocative, but Vermeule is referring to a limited (though important) class of decisions. To fall into this class, a decision must exhibit "first-order uncertainty" -- genuinely unquantifiable uncertainty due to absence of information about facts or individuals' future actions -- and also "second-order uncertainty" -- impossible to gather further information to resolve the first-order uncertainty.

The "Rogers Exception": Some Recent Canadian Standard of Review Decisions

In my essay on deference and the copyright cases, I suggested that an innovation the Supreme Court of Canada made in Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35 would bedevil lower courts. Briefly, the exception suggests that where there is co-ordinate jurisdiction between courts and administrative decision-makers to interpret statutory provisions, the standard of review is automatically correctness. I previously noted an early example with some satisfaction.

In recent weeks, the Rogers exception has been the subject of judicial treatment on several occasions. However, it has not had any effect -- which, given that I described the innovation as "unfortunate", I am pleased to see.