 Thank you very much John. It's a great pleasure to be here back at Cambridge. It's been a long time since I was here many years ago visiting my former professor of obligations Tony Weir who was at Trinity College for many years and great pleasure to reconnect with the friends from various Commonwealth jurisdictions that I've seen over the years I'm sure all of you have Studiously read every word of my paper particularly those of you who had long plane flights and I'll therefore try simply to summarize remind you of some of the points and then perhaps we can have some discussion in the time that remains the Paper really Proceeds in three sections. I make three points that attempt to connect up some broad philosophical ideas with some more grubby legal implementation ideas beginning with the idea of public reason which as many of you will know since perhaps the late 1960s has been virtually the only game in town and in political philosophy attempting historically to connect up the ideas of personal and individual liberty governmental coercion and value pluralism the idea being to attempt to justify within the bounds of individual liberty state coercion given A an extreme recognition of value pluralism my suggestion in the paper is that this set of ideas While necessary and heroic has certain difficulties particularly difficulties of scope That value pluralism is a bit more unrelenting than the public reason theorists might wish And therefore every public reason theory has to be qualified in some way And sometimes qualified procedurally That is it would work To legitimate state coercion to explain the reasons for it Provided that those persons to whom explanation was made reasoned rather like I do or Within some general set of substantive liberal democratic values The other move is to say well, I don't want to substantively limit the scope of the theory Perhaps it needs to be procedurally limited. I think that even given value pluralism Those who heard the reasons would if they reasoned long enough and hard enough come to see That the state coercion was in this instance justified or of course in some circumstances not justified so people within these theories have to be treated as if They were in some sense hypothetical persons that persons having some so substantive ideas in common our persons who Had the capacity over long Procedures to come to view things rather in the same way in some sense this falsifies One of the basic premises of the whole enterprise Which is we will conquer value pluralism Value pluralism gets conquered By sweeping it under the rug in some sense but then What are we to do with respect to the legitimation of modern administrative states? We can hardly rely on consent consent is Extremely abstract and most modern large administrative states we consent reluctantly to elect the people put up In our various constituencies They then go off to representative assemblies. I use representative and square and scare quotes Where they then delegate much of policymaking To a set of administrators who are themselves not elected and are within some broad bounds Within the political control of those representatives, but the broad bounds are extremely broad indeed Most legislation is not self-interpreting In the none of it is and as a consequence It is the administrators themselves who make a great deal of the policy to which citizens are subjected Consent simply won't do it and the Perhaps there are still jurisdictions within which administrators are viewed as Sufficiently expert and professional that they have direct access to the truth of the matter But by and large we tend not to think so We can because we do recognize value pluralism To think that these administrators have values which they insert into the process of policymaking. They're not near Audimaut on to implement The direct will of the legislature and as a consequence that we need some way to justify that what they do is legitimate and It seems to me that in most jurisdictions that what we have come to is something like what the political philosophers Have suggested that is they must give reasons And the reasons are the justification for the actions and to some degree my suggestion is that these That this approach This requirement of reason-giving for legitimacy is a success That is although there are difficulties at a philosophical level with the public reason project and Certainly practical difficulties with reason-giving in administrative jurisdictions. Nevertheless We no longer believe that anybody has direct access to truth. We no longer believe That consent has actually been given to the coercive activities of administrators and therefore in some sense They must convince us if we are to be subject to the law and not mere objects of it That they have done something for reasons which we can understand to be a justification for collective action It may well be that in the United States. We have taken this further than almost any other jurisdiction in some Situations, we seem to take it to almost laughable links Our courts for example in reviewing administrative action have required Administrators not just to give reasons but to give reasons at the time that they make the decision. No post hoc rationalizations allowed. I suppose this is a great ambition although I know no one in the Psychology fraternity who believes that any reasons are anything other than post hoc rationalizations Nevertheless, you can't do it Simply as litigation affidavits and the like You've got to provide your reasons at the time that you make the decision The reasons have to be responsive To the record that is to the submissions of parties and in the US This is both in the adjudicatory context and in the rulemaking And these requirements Can be extremely demanding. They are mostly put forward as procedural requirements that is Although the Administrative Procedure Act says that judges are to reverse Decisions which are arbitrary or capricious or lacking in substantial evidence What the judge generally acts is whether the administrator has given good enough reasons for the activity and even if the judge would believe that the administrator has Acted properly if the reasons are improper There is nevertheless an invalidation or a man to go back and think again and thinking again may merely be Thinking about what reasons the judge would accept if we gave them differently the In some ways this becomes a sort of checklist has the administrator Demonstrated thought about all the considerations which seem to be relevant to the determination has the administrator excluded from consideration all those things which are excluded from consideration and At some level it becomes substantive. That is sure Arbitrary unreasonableness, but when rarely finds a judicial opinion Saying simply the administrator has Not to put too fine a point of it then too stupid To be believed we're going to overturn because they're simply wrong mostly the The suggestion is that a procedural mistake is made failure to respond to adequately raised objections and the like This of course is At one level Designed to protect the judiciary from engaging in activities which under our and most Jurisdictions vision of separation of powers judges are not meant to engage in that is policy choice on their own the Legislature or the parliament has given policy choice to the administrator not to the judges by and large The judges then are to see that the administrator stays within those bounds and looks primarily at least in the US To the reasoning process to see whether the bounds have been maintained now I say in the paper that in some ways, I think this has been a triumph after all, you know This is carrying forward in some sense the whole of the the enlightenment project of substituting Reason or myth culture faith None of those things in pluralistic societies any longer will legitimate administrative or governmental action for us by large And as a consequence it is a success success in some sense indeed those who Celebrated success have seen it in many ways as instantiating a form of deliberative democracy in which Citizens participate in a more thorough going way at the administrative level than they do in politics In which they merely aggregate their votes And the US aggregate their dollars to elect various parties and then Shutter at what they do In the form of the legislature They can have direct access and are guaranteed direct access to the decision-makers who must then respond Now as I say in the paper there is a downside to this as well One downside is that reason giving can become a sort of end in itself and one might Think that in the US perhaps it has because it's not just the judiciary That imposes reason-giving requirements on American administrators And we have a whole series of other analytic requirements imposed both by statute and by The executive or by executive orders which require the administrators when making decisions consider environmental impacts regulatory impact impacts in terms of cost-benefit analysis regulatory impacts in terms of cost-effectiveness regulatory impacts in terms of effects on small entities special consideration for regulatory impacts on Native Americans special consideration of paperwork burdens imposed by regulatory activity and so on Most of those requirements are not enforced by the courts Some of them are not enforced by anybody But others are enforced in the executive office of the president the office of management budget on a special bureau Call the office of information and regulatory affairs In which has to review at least the regulatory impact analysis and the paperwork burden analysis for all major regulations by federal administrative agencies certain other Requirements the regulatory flexibility act requirements with respect to small entities simply are overseen by political control and not very Effectively I might add but if you look at the organization of American Regulatory agencies take a large one the environmental protection agency which has thousands of employees You will find that there are special bureaus set up within the agency to deal with all of these analytic requirements Every one of them has its staff and some of these staffs are quite large To make sure that the agency has thought about all of the things that statute and regulation and executive order requires be thought about and Thinking about it takes time the regulatory process in the United States is often described as ossified That terminology simply comes from a speech years ago by the then general counsel of the environmental protection agency Who coined the term of ossification and there is a huge literature actually a cottage industry almost an industry not a cottage Devoted to the ossification question does it exist or what extent does it exist what it causes and so on so that Paralysis by analysis Can infect administration because of a legitimate desire to require that agencies not only give us reasons Why they are acting Appropriately given their organic statutes their basic missions, but also that they have understood That their basic mission does not exhaust our desires for a good life that we can care about the environment We care about cost we care about imposing undue burdens on people who have difficulty burying them and so It's a side effect and perhaps one that is exploited By another difficulty in the in the reason-giving approach to legitimacy and that is that requirements of responsiveness can mean that those who are extremely well resourced are able to use reason-giving as a form of harassment rather than a form of legitimation and indeed Regulatory Disbeneficiaries that is those who must comply with regulations rather than being the beneficiaries of their compliance often raise very large numbers of objections to proposals by administrative and if one looks empirically at the Submissions for example in American Regulatory rulemaking proceedings you find that 85 to 90 percent of those submissions are from regulated parties and not from the general public or from the potential beneficiaries and having looked with some care years ago at Regulation of automobile safety in the United States. I found that Simply one firm the Ford Motor Company Had more employees devoted to auto safety regulations than the National Highway Traffic Safety Administration devoted to those same regulations. They're completely overmatched and Nevertheless must be responsive to the well-reasoned and if you're well resourced they will be well-reasoned objections of parties so that this image of deliberative democracy is an image that in Practice often speaks With the voice of the regulated rather than with the voice of the public generally pluralism has its cost if you don't don't regulate participation in some way which of course in itself would be a Weakness of the participatory participatory model But I wanted to suggest in my paper that there may be a deeper problem with Reason-giving in the administrative state that is it has these practical difficulties limitations on the ability of government to act perhaps Allowing what some people call a form of epistemic capture with respect to regulators Because of the resources of those who object their Activities, but I think there's there's something further at work here And what I'm suggesting in the paper is that the reasons that we give for administrative action are reasons which sound essentially in instrumental rationality Given the goal of this statute and the facts as we have found it If you want to meet that goal then for some set of highly technocratic reasons quite often This policy makes sense and that responds to a form of scientific or technocratic rationality but valorizing some of Habermas's thought my paper suggests that there are other realms of Rationality within which we all operate Not just the material world, but the social and the personal as well and in the social world we're concerned about justice and morality in the personal world we're concerned about authenticity and Administrative reason-giving however sophisticated it has become doesn't speak to those Forms of rationality. It doesn't speak in ways that are truly legitimating with respect to Situations in which there may be a perfectly good material or technocratic reason and nevertheless we're disappointed by the outcome and Have a failure of understanding both generally and perhaps even among elites as to what's going on and whether it is in fact appropriate cost-benefit analysis is to some degree an Important development. I think in virtually all of our jurisdictions are now regulatory analysis that looks at costs and benefits Certainly makes sense regulators don't have an explicit budget other than for staff and personnel And equipment They don't have a regulatory budget. They therefore might willy-nilly impose all manner of unwanted costs on society and yet underneath that analysis or a whole series of extraordinary in the excruciating question about the values that are plugged into those analyses and There are professional norms about the way in which these things are done in the economics Fraternity, but those professional norms are largely Designed to allow one to get on with the job of doing the cost-benefit analysis not necessarily Speaking to the difficult moral and political questions that underlie it. Let me let me close by Suggesting one exact. I actually know of only one example in the United States in which an administrator has attempted to broaden the question of What reasons are good enough with respect to a regulation and that was Secretary of Transportation Coleman back way back in the Ford administration who was faced with a question having to do again with with automobile safety and Secretary Coleman in one of the 24 notices of proposed rulemaking that stretch over 20 years in adopting a particular rule said you know my statute says that we're supposed to Regulate unreasonable risks of harm How should I think about unreasonable? Because one of the things that I ended this this rule had to do with the Imposition of requirements of passive restraints in automobiles the automobiles at that time all were by regulation required to have lap and shoulder belts, but this was the so-called airbags rule And airbags were much more expensive than the lap and shoulder belts and the lap and shoulder belts were already there And Professor Coleman's I mean Secretary Coleman sometimes teaches Said you know We're supposed to regulate unreasonable risk now. We've gone out and tried to find The extent to which people in fact use those lap and shoulder belts and we've done it in two ways one we took a poll and 65 to 70 percent of Americans said they wore their lap and shoulder And then we sent some people out with binoculars To stand on overpasses and look at drivers and passengers in automobiles and what we find is 14 percent of Americans where they're like Are they being unreasonable That is they've got those lap and shoulder belts there in the car. They don't put them on If a vast majority of Americans don't wear them Are they running an unreasonable risk of harm? How are we to think about reason should we think about it in what the ordinary reasonable American does if so This is not an unreasonable risk Moreover said Secretary Coleman Those belts are already in the automobile and the people who think the risk is unreasonable to them wear them Those who don't don't if we adopt this rule We're going to make automobiles more expensive and will require those people who already protect themselves under as Protected as they will be actually the lap and shoulder belts are a little bit better than the airbags. I said to say Protecting drivers and passengers. We're going to impose costs on them Which are in some sense unfair? They've already got the equipment and they use it and we're protecting people who don't want to be protected at a cost to people who Already protected is this reasonable good questions good questions about the justice of this group In the submissions that came back There was deafening silence deafening silence The people who participated in these proceedings simply didn't know how to deal with the broadening of the question that Secretary Goldman was attempting to bring up He learned Virtually nothing now the questions he asked were so difficult that it might have been he would have learned virtually nothing People have responded in great numbers, but it's a difficult it's a difficult matter and Alas in my my paper ends Something on a downer that is it seems to me that there are extremely difficult problems in building in To what we now treat as administrative rationality some broadening out into rational Discussions which would satisfy our hunger for things that speak both to our sense of justice and morality and to our sense of ourselves as authentic individuals But nevertheless, it seems to me that in moderate administrator states if we are to continue to govern in the way that we now govern Which is largely it seems to me by administrators Design of public institutions need to in some way attempt to take these matters into account if it intends to remain in any broad sense legitimate to the public that it necessarily Coerces thank you Thank you very much show that was a very thought-provoking and challenging set of questions for us And we have a little over 10 minutes for questions if you could introduce yourselves If you could raise your hand if you would like to make an intervention and then Bring any people I'm David Dyson House University of Toronto, so I was interested in the way that your paper moved registers as it were so The way I understood it in your presentation Is that you start off by telling us that the public reason stuff in political philosophy is too heroic And then we have a move to something that looks actually quite unheroic And that's reason-giving in the administrative state But then the complaint at the end is that Reason-giving in the administrative state isn't heroic enough and when it tries to become heroic We end up with something like the same kinds of problems that we encounter in political philosophy And that is we find that if we're going to broaden things out and with the practices of reason-giving We start operating with a hypothetical subject rather than the actual people that these Directives are directed against so I wondered if you could say something about this kind of heroic unheroic attention if you like in the paper Right. Thank you David. I I was Living in fear of David raising his hand. He's much deeper into the philosophic literature than I am Well, I guess my idea is this that At the love at the unheroic level The conversation doesn't have to be amongst philosophers So that The fact that there is a slippage that is that we deliberate about these matters and don't actually agree and to some extent Fail to accept all of us the reasons that are given Doesn't necessarily undermine the value of having the conversation about them that is It may be that as a practical matter We can accept ultimately Decisions about which we deeply disagree substantively But come to understand that this is not a mere imposition of the will of others on us, but instead represents strongly held or perhaps only provisionally held Beliefs and ideas which nevertheless they're prepared to defend Prepared to defend openly and therefore recognize in some democratic spirit that we're all entitled to understand Where they're coming from and that they're coming from places that respond to a whole set of Values that we all tend to hold although disagree about their Valence or applicability in particular circumstances. So As I say at one point in the paper I'm suggesting that that public reason is one of those things which doesn't work out So doesn't seem to work very well in theory, but might work out okay in practice simply because our demands are less demanding than those of the political philosophy Aileen Kavanaugh University of Oxford. Thanks for a fascinating paper. It is an issue that we're thinking about a lot now in UK administrative law and in constitutional law I have two brief questions and the first is one of information. I was wondering if there is any Empirical work in the United States on whether these reasoning requirements set by Courts are being genuinely internalized by agencies or whether it's having no effect or it's producing a tick box mentality and it's actually just a false charade of Good reasoning that would fly in the courts rather than a genuinely internalizing a Good way of reasoning if it is good and other questions about the cost of doing so even if it is good So that's the first question and the second is the point you made about These reasoning requirements being partly justified by legitimizing the courts in a non interventionist stance and I wasn't too sure whether you were presenting that as a view that's often put forward or Whether you owned it and I was wondering about your view on that because it seemed to me that if the courts are Telling agencies how to reason That has a systemic effect is potentially highly intrusive It's telling them essentially what is there is not appropriate action and that's not only highly intrusive But potentially more intrusive than an isolated strike down of one decision of substance So I wondered what your view was on that too. Thank you Right on the on the first one. There is indeed some empirical literature on Whether this is internalized by agencies or whether they in some sense Hive off various questions into bureaus which go their own way do the analyses and it doesn't have any effect on decision-making and in fact as one might expect What you find is the answer is yes and no, right? That in some agencies there seems to be a substantial effect so that for example the Core of engineers which does lots of public Infrastructure projects in the United States was for many years an organization if it comes essentially out of the old Army Corps of Engineers dating back to the to the Beginning of the Republic Their vision of America seemed to be that it should have concrete everywhere That that every every stream should be straightened made into a culvert and alike Then came the Environmental Protection Act requiring environmental impact statements and studies of course of engineers suggest that in fact The mentality and culture of that organization has radically shifted over time. It wasn't instantaneous obviously, but different people began to be attracted to the core and It was fully almost fully internalized in some way that that has not happened in other agencies and particularly with respect to Cost-benefit analyses and agencies where the questions tend not to lend themselves very well to that sort of analysis They're trying to do something which will keep the office of management and budget from Ludging them in one way or another But only that it's simply done to satisfy the bureaucratic controllers and so on So you're going to find different things in different agencies now with respect to the whether Judicial review for the reasoning process in fact that keeps judges in their place I Don't actually own that Very deeply that is that I see quite a few instances in which it seems perfectly clear That the judges are interested in the reasoning process only because they view the outcome is in some sense misplaced and warranted and the like I Think that in other Commonwealth jurisdictions the judges have been perhaps a little more restrained Have kept themselves more within within what might be viewed as a standard judicial role American judges have particularly been invited into this by Congress doing something which I think Probably was a mistake and a large number of regulatory statutes and that is to allow judicial review immediately upon the enactment or adoption of a rule rather than at some stage in which it's being implemented and You have some practical understanding of how the thing works in you know on the ground So that in some sense this review is I'm trying to imagine Whether in practice this would be a reasonable regulation to impose on Various various parties and that you know the world is a more complex place than we can imagine and Things that look like they're going to be difficult often may turn out to be quite easy Give one Limited example again from the auto safety situation There was a regulation which required labeling certain characteristics of tires on Retreated tires in order that people would understand what their limits were it was attacked as being unreasonable and Overturned on the grounds that the agency had not appropriately responded to a suggestion by tire retreaders that it was going to be very expensive And perhaps not very useful between the time that the agency adopted the regulation and The case was heard on appeal the Innovative people at the 3m corporation Came up with an adhesive sticker that had these characteristics of the automobile of the tire on them which could be a fix to the tire permanently for 12 cents Rather than the three dollars and a half or whatever it was to vulcanize it into the casings This became this was completely irrelevant on review because This was not something that the agency knew at the time that it adopted its regulation and therefore its reasoning was inadequate Even though it turns out that it would have been quite reasonable Now if review had been delayed until someone had this enforced against them this knowledge would have been available And perhaps just a justificatory So I think judges have you know sometimes appeared to Overstep the bounds of appropriate judicial action because they've been invited to do something which is extremely difficult to do in the abstract United States Europe and European administrative could be seen as a system that's built around reason giving pondering on that and Contouring on the article you yourself wrote about it. It seems to me that the outcome has been particularly bureaucratic form of administration in which The reason giving requirement is reduced to sort of hollow shell around Substantive decisions, which are never really spoken of and I wonder whether you would comment on that I have a second and not very linked question, which is it seems also to me that in the United Kingdom the idea of fairness has Become the central concept of administrative law and you mentioned fairness in your Presentation and I wonder how you see those two ideas as clipped in reason giving and fairness Let me let me take the second one first To some extent they're linked In the United States by the suggestion that it would be unfair Not to give reasons right Because people need to know Whether it's sensible to try to carry this dispute further so that the reason giving is in some sense parasitic on an idea of fairness I Think there's another sense in which Fairness can be judged in terms of whether The process is one which is likely to lead To an appropriate result that is accurate findings of fact appropriate appreciation of policy and their application to back So that to be substantively reasonable is in some sense also to provide a fair process within which one can reason So I think they're very closely related and in both of those ways I'm not saying much about about the the European context which I knew reason of you know pretty well 50 years ago when I did my PhD thesis on the Court of Justice the European communities but Don't know nearly so well now, but as you suggest I think it may be exemplary of the problem I was raising just at the end of the of the lecture that is The sense that looking at these reasons. They're not speaking to us They are failing in some you know important way to respond to the sorts of concerns that we have and therefore are Simultaneously legally legitimating because they they've done the checklist And substantively not legitimating because they haven't spoken to the substance that we care about I'm afraid because of time will and make sure that the groups Take place on reasonably on time. We'll have to limit the Discussion there and can I thank Jerry very much for his in contribution because it has Introduced the issue of the relationship between procedure and substance very clearly and very Engagingly and I hope that will set the tone for the rest of the conversations that will happen through today and tomorrow