On Making Judges Do the Right Thing

Abstract

Professors Shapiro and Levy posit that Chevron' and State Farm,2 though frequently cited as landmarks of administrative law, are in reality dead letters. They propose to explain this startling development by juxtaposing the and outcome components of judicial decisionmaking against one another.3 Through this simple modeling exercise, they conclude that existing indeterminate craft norms allow judges to achieve desired substantive outcomes when private parties seek judicial review of administrative rulemaking.4 Implicit in this conclusion is the suggestion that judges usually (or at least sometimes) desire to reach particular substantive outcomes in a more-or-less unprincipled fashion. The authors suggest legislation that would require the courts to toe the line by forcing them to respond to a series of specific questions when they engage in statutory and substantive judicial review.5 The heart of Shapiro and Levy's comment is an ambitious attempt to apply theory to judicial behavior. Although I admire the effort as an intellectual exercise, its resulting prescriptions give me pause. My problem is not so much with the application as it is with the theory itself. Having committed themselves to the theory, the authors are led inexorably to a solution that, in my opinion, has little chance of success in the real world. Practitioners of public choice theory, in my view, often take a very narrow view of the psychological impulses that motivate people to act or decline to act. Judges no doubt want to be respected in the profession (who does not?), and judges (like most