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92 N.C. L. Rev. 721 (2013-2014)
Deconstructing Arbitrary and Capricious Review

handle is hein.journals/nclr92 and id is 747 raw text is: DECONSTRUCTING ARBITRARY AND CAPRICIOUS REVIEW* LouIs J. VIRELLI III* Arbitrary and capricious-or hard look-review is a legitimizing force in a political and legal environment that is increasingly hostile to administrative government. It is thus no surprise that arbitrary and capricious review is a recurring topic of debate for both courts and commentators. Despite this active focus on hard look review, however, a crucial point has been overlooked. Existing scholarship overwhelmingly portrays arbitrary and capricious review as one-dimensional-as applying the same standard in the same way across all manner of agency conduct. This Article reconceptualizes hard look review as a multidimensional expression of judicial deference and argues that arbitrariness review is both more effective and more easily justified when it is deconstructed -when it first divides administrative policymaking into its constituent parts, such as record building, reason giving, input scope and quality, and rationality. This deconstruction exposes arbitrary and capricious review for what I contend it is and should be: a collection of more particularized inquiries into specific components of agency decision making. Deconstruction also provides a new theoretical framework in which arbitrary and capricious review tailors judicial deference to discrete aspects of agency decision making. Finally, deconstruction offers institutional and systemic benefits that help clarify how hard look review should be utilized in * @ 2014 Louis J. Virelli II. ** Leroy Highbaugh, Sr., Research Chair and Professor of Law, Stetson University College of Law. This Article was accepted as part of a call for papers for inclusion in the New Voices in Administrative Law program at the 2013 Annual Meeting of the Association of American Law Schools. I am grateful to Ron Levin and Mark Seidenfeld for their very helpful comments in connection with that program, and to Mike Allen and Emily Hammond for their equally insightful comments on an earlier draft. I am also thankful to Erin Coburn for her outstanding research assistance. This project was generously supported by a research grant from Stetson University College of Law. Any errors are entirely my own.

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