norml23 - 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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