Judicial review of decisions of regulatory agencies, and of statutory enactments with important economic content, presents unique and persistent problems. Sound economic policy requires a balancing of costs and benefits and of demand and supply, and the decisions of regulatory agencies are often technical and complex. Judicial review is usually performed by nonspecialists who often seek to provide clear rules and predictability, not case-by-case economic balancing of their own. Judicial deference is not a complete solution to the tensions between economic reasoning and judicial review, because regulatory decisions and economic legislation often produce results sharply at odds with their formal, official purposes. Justice Stephen Breyer will discuss these dilemmas in the context of recent Supreme Court decisions and offer suggestions for addressing them.
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