The Basic Principles of the Appellate Review Model

We start with two incredibly rich cases that explore the limits of the judicial role in the appellate review model. These two cases are classics for a reason. Together, they tell us much of what we need to know about the basic dilemma of judicial review of agency action--the need for courts to engage in meaningful review to ensure that the law was followed and decisions are reasonable and fair without usurping authority that Congress gave to agencies rather than courts--and how judges conceive of their role in that task.

The cases emphasize two basic requirements for judicial review to take place: there has to be a record of what the agency did, and the agency must supply reasons for what it did. Of course, the many different processes agencies deploy to take action (e.g., informal rulemaking, formal adjudication, guidance, etc.) yield different levels of development of the record and different depths of reasoning. This of course matters a great deal to what judicial review can do. How should courts respond when the record and reasongiving is insufficient to allow a court to determine the questions before it? These cases lay out some of the ground rules, and they are worth reading very carefully.