Debiasing Regulators: The Behavioral Economics of US Administrative Law

Abstract

Behavioral economics has revolutionized American legal scholarship in many areas of law, but not in administrative law, the law that regulates the regulators. This article theorizes that the administrative law doctrines developed by the Supreme Court of the United States strikingly resemble a system of ‘debiasing’ devices developed to counteract bureaucratic and judicial behavioral failures in just the areas that they matter most. A strong, alternative, justification may thus exist for the enduring paradox of American administrative law that administrators should be prepared to have their substantive decisions scrutinized by ‘hard look’ reviewing courts, while judges should be ready to defer to agencies on questions of statutory interpretation.