When and to Whom Should an Administrative Agency Be Required to Give Reasons for Its Decisions?

My Latest Article in Cardozo Law Review Volume 37

Abstract:     
This Article presents a framework for reason-giving requirements in administrative law that includes a demand on agencies that reasons be produced contemporaneously with an agency’s decisions where multiple constituencies (including regulated entities), not just the courts (and judicial review), are served and respected as consumers of the reasons. The Article postulates that the January 2015 U.S. Supreme Court decision in T-Mobile South, LLC v. City of Roswell may prove to be groundbreaking and stir this framework to the forefront of administrative law decision-making. There are some fundamental, yet very understated, lessons in the T-Mobile opinion that prompt further attention and the fuller justification that this Article’s analysis provides.

The predominate focus in reason-giving by courts and scholars has been on when the agency must generate or develop reasons, not necessarily on when they must share them with the public. And courts and scholars have focused significantly on how reasons facilitate judicial review, but not necessarily so much on who else can demand the contemporaneous production of reasons associated with an agency’s decision. This Article’s framework seeks to broaden the focus. It calls for rules that mandate contemporaneous generation and contemporaneous revelation of reasons for immediate review by all interested constituencies at the time of decision.

The two primary conditions on reason-giving recognized in T-Mobile should receive broad implementation across the field of administrative law. Contemporaneous production of reasons with an eye toward cooperatively informing multiple constituencies who require, demand, or simply benefit from being able to access an agency’s reasons works to better serve the administration of our laws and improve the quality of the rules generated.