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1987 Duke L.J. 387 (1987)
Heightened Scrutiny of the Fourth Branch: Separation of Powers and the Requirement of Adequate Reasons for Agency Decisions

handle is hein.journals/duklr1987 and id is 403 raw text is: ARTICLES HEIGHTENED SCRUTINY OF THE FOURTH BRANCH: SEPARATION OF POWERS AND THE REQUIREMENT OF ADEQUATE REASONS FOR AGENCY DECISIONS SIDNEY A. SHAPIRO* AND RICHARD E. LEvY** Judicial review of administrative action is an inexact science. Professors Shapiro and Levy argue that this is partially because review of administrative actions is an unexplained science. In this article, they examine how the evolution of judicial review of agencies has reflected changing political values in American government. They argue that courts now require agencies to provide adequate reasons for their actions, and, by tracing the development of that requirement, they demonstrate that the courts have not fully explained the significance of or doctrinal basis for this model of review. The article concludes that the adequate reasons requirement is best understood, and applied, as a derivation of the separation of powers doctrine. I. Political Values and Judicial Review ....................... 390 A. Liberal Values in American Government ............... 391 B. Progressive Values in American Government ............ 392 C. Value Conflict and the Problem of Judicial Review ..... 394 II. The Evolution of Judicial Review and the Accommodation of Political Values ........................................ 396 A. The Structuralist Model .............................. 398 1. The Evolution of Structuralism .................... 398 * Professor of Law, University of Kansas. B.S., 1970, J.D., 1973, University of Pennsylvania. ** Associate Professor of Law, University of Kansas. B.A., 1978, M.A., 1980, University of Kansas; J.D., 1984, University of Chicago. The authors would like to thank Walter Gellhorn, Robert Glicksman, Robert Jerry, Phillip Kissam, William Lawrence, Ronald Levin, Kathleen Levy, Jonathon Macey, Richard Pierce, Rich- ard Posner, Peter Schanck, and Cass Sunstein for helpful comments on an earlier draft; and to thank Wayne Smith and Veronica Jongenellan, Class of 1987, and Cheryl Waldron, Class of 1988, for their research assistance. The authors gratefully acknowledge the support of the University of Kansas General Research Fund which made this study possible.

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