2022, Paper: "In its ideal form, arbitrariness review is an instrument for promoting “deliberative democracy”—a system that combines reason-giving with political accountability. Under arbitrariness review in its current form, courts tend to embrace the “hard look doctrine,” which has a procedural component, requiring agencies to oer detailed justications, and also a substantive component, in which courts assess the reasonableness of agencies’ choices on the merits. These are serious constraints on the executive branch, and they also reduce the risk of large-scale instability in government, in which scientic and economic judgments are overridden by political considerations. With respect to regulatory policy, it is not enough to say that “elections have consequences."
HKS Faculty Author - Cass Sunstein