| Popis: |
This chapter examines the US federal courts’ reaction to the regulatory agencies’ increased recourse to expert economic evidence and analysis. It argues that an evolutionary transformation of the scope and nature of judicial review has taken place: from an intrusive ‘hard look’ review epitomised in the 1980s by the Supreme Court’s State Farm decision, to what is an undemanding version of rationality, referred to as ‘thin rationality’ review. ‘Thin rationality’ review emphasises institutional competence and historical considerations and is more attentive to the interplay of the various values that inform agencies’ actions. The chapter shows that institutional competence and historical considerations are mostly pronounced in polycentric disputes, such as those involving rate-setting, whereas in cases concerning access to bottleneck facilities and universal service obligations judicial scrutiny is determined by the emphasis given to the underlying values of efficiency and equity. Taken together, they yield a picture of deference to agencies’ economic expertise in regulatory matters. |
