norml23 - Page 77
Page 77
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judicial attention primarily to matters of
procedure. On matters of substance, the courts
regularly upheld agency action, with a nod in the
direction of the "substantial evidence" test and a
bow to the mysteries of administrative expertise.
Courts occasionally asserted, but _ess often
exercised, the power to set aside agency action on
the ground that an impermissible factor had entered
into the decision, or a crucial factor had not been
considered. Gradually, however, that power has come
into more frequent use, and with it, the
requirement that administrators articulate the
factors on which they base their decisions.
Strict adherence to that requirement is
especially important now that the character of
administrative litigation is changing. As a result
of expanding doctrines of standing and
reviewability, and new statutory causes of: action,
courts are increasingly asked to review
administrative action that touches on fundamental
personal interests in life, health, and Jiber_y.
These interests have always had a special c_aim to
judicial protection, in comparison with the
economic interests at stake in a rate-making or
licensing proceeding.
To protect these interests from administrative
arbitrariness, it is necessary, but not sufficient,
to insist on strict judiciaJ scrutiny of
administrative action, For judicial review alone
can correct only the most egregious abuses°
Judicial review must operate to ensure that the
administrative process itself will confine s:nd
control the exercise of discretion. Courts should
require administrative officers to articulate the
standards and principles that govern their
discretionary decisions in as much detail as;
possible. Rules and regulations should be freely
formulated by administrators and revised when
necessary. Discretionary decisions should more
often be supported with findings of fact and
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