NewYorkUniversity
LawReview
Current Issue

Volume 90, Number 4

October 2015

“Inquiries That We Are Ill-Equipped to Judge”

Debmallo Shayon Ghosh

Factfinding in Appellate Court Review of Agency Rulemaking

Recognizing the need for a check on agencies’ discretion, Congress has assigned the task of reviewing agency rulemaking to the judiciary. Yet, by allocating much of that review directly to appellate courts, Congress has forced them to find facts. For example, when deciding challenges to a rule that an agency has promulgated, these courts must often hear for the first time plaintiffs’ evidence about factors that the agency failed to consider. When deciding challenges to an agency’s failure to act, they must weigh the plaintiffs’ proof about the consequences of the delay against the factual explanation the agency offers for its inaction. And, in any of these challenges, appellate courts may have to rule on facts related to standing. At best, because appellate courts typically lack the tools and institutional experience to conduct factfinding effectively, Congress has unduly burdened these courts and magnified the risk of inaccuracy. At worst, it has created incentives for appellate courts to defer to agencies and thereby weakened the entire institution of judicial review. The solution is simple: Congress should return these factfinding responsibilities to district courts.