Dialogue, Deferred and Differentiated

By: Emily Hammond Meazell

Introduction

When agency actions are challenged in court multiple times in an iterative fashion, the resulting dialogue offers insights into the features of the court/agency relationship that are not necessarily apparent in other contexts. In Deference and Dialogue in Administrative Law,¹ I examine a number of serial cases and develop a dialogic account of the resulting back-and-forth exchanges. In his thoughtful response, Of Dialogue—and Democracy—in Administrative Law,² Professor Jim Rossi offers additional considerations for developing a fuller account of dialogue in administrative law. I am delighted by Professor Rossi’s interest in a scholarly dialogue, and provide this reply in that spirit.

Professor Rossi organizes his response around two issues. First, he asks how doctrines that preclude judicial review altogether fit into my account of the relationship between courts and agencies. Second, he suggests that the role of politics and other actors ought to be part of a more holistic conception of dialogue in the administrative state. He concludes that some conversations may not be worth having, while others may be more about engaging other potential participants in a broader political dialogue.

Before addressing Professor Rossi’s response, it may be useful to consider what Deference and Dialogue does and does not do. What it does is examine serial litigation to glean insights for the court/agency relationship more generally. The scope of the article is limited to agency actions that underwent judicial scrutiny more than once, but, contrary to Professor Rossi’s suggestion, it is not limited to substantive review.³ Instead, the project examines each iteration for signals that the agency and court send to one another about their views of the scientific and technical issues, their views of the appropriate applications of the relevant law, and their observations about any previous iterations of the same issue. These iterations include review of agency procedure as well as substance.

This analysis achieves several things. First, it shows that serial litigation can be quite dialogic, and the Article explores that characterization by drawing on the constitutional law literature on dialogue between courts and legislatures. Second, it provides insights into risk regulation more generally, where facts may evolve and agencies as well as courts are challenged to incorporate new information into their decisionmaking. Third, and relatedly, the study of serial litigation offers a new perspective from which to consider the role of scientific uncertainty in risk regulation, and particularly, for testing the courts’ ability to translate information about scientific uncertainty for more generalist consumers of administrative law.⁴ Finally, the serial cases—assessed using dialogue as a normative construct—allow a deeper understanding of the relationship between the legitimizing role of judicial review and the many deference doctrines that pervade administrative law.

The best contribution of Professor Rossi’s response is its ultimate question: How can we use the concept of dialogue more fully in administrative law? As indicated above, Deference and Dialogue focuses on agency actions that underwent judicial review more than once. But Professor Rossi and I agree that the notion of dialogue is worth considering beyond that arena.⁵ Dialogue—which I use in a normative sense meaning “a process of learning and understanding that enables deliberation toward a common end”⁶—is both a feature of, and a worthy aspiration for, administrative law broadly conceived. As between courts and agencies, dialogue can occur even in the absence of iterative review,⁷ and even when a conversation is ultimately deferred. And one of the reasons administrative law is such a rich field for study is its capacity for many meaningful dialogues outside of the judicial sphere.⁸ Below, I offer some thoughts on each.

I. Dialogue and Reviewability Determinations

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