Reviewing Reviewability

Details

Author(s):
  • Rose Carmen Goldberg
Publish Date:
May 22, 2016
Publication Title:
Stanford Law & Policy Review
Publisher:
Stanford University
Place of Publication:
Stanford, California
Format:
Journal Article Volume 27 Issue Online Pages 9
Citation(s):
  • Rose Carmen Goldberg, Reviewing Reviewability, 27 Stanford Law and Policy Review 9 (2017).
Related Organization(s):

Abstract

Heckler v. Chaney stands out amongst the Supreme Court’s reviewability case law for its particularly narrow basis of decision—agency action versus inaction. I argue that this approach is flawed. I start by critically comparing Chaney to other key reviewability cases and discussing two downsides to the action-inaction framework that these juxtapositions reveal. First, it is manipulable. Action and inaction are not subject to strict definition, which can result in inconsistent holdings. Second, it distracts courts from cases’ real-life stakes by prompting them to focus on a dividing line divorced from underlying interests. Next, I consider counterarguments to my interpretation of these two features as pitfalls. I conclude that the action-inaction framework should be modified instead of replaced, despite its flaws. It has benefits that make it worth saving.