Substantive Law Study Support

The Chapter Overview delves into the choices or options agencies have in their discretionary powers. This power, discretion, allows agencies the flexibility to adapt their daily decision-making.

A. Explanation of Discretion introduces the necessity of agencies to have discretionary powers and the manner in which it is used.

B. Effect of Discretion on Agency Decisions explores the assets, dangers and
safeguards of discretion in agency actions. This section reviews informal
actions such as claims and their precedents; also, the resultant formal decisions that might be initiated.

C. Past Practice and Discretion explains that many agency decisions are based
on similar, repetitive situations effecting different citizens. Conflicts
arise when agencies abruptly change their decisions.

D. Expertise and Agency Decisions identifies one of the major practical reasons
Congress empowers agencies – their staff has the knowledge and expertise to
solve a modern complex society’s problems.

E. Abuse of Discretionary Powers discusses the difficulty of determining
abusive agency decisions on facts. Agencies are the experts on facts as courts
are the experts on laws.

F. Cases Upholding Discretion highlights two notable cases: Overton – when
an agency takes an action, and Chaney – when an agency refuses to take an action.

G. Judicial Deference to Agency Discretion introduces the historical development of standards for judicial deference to agency discretion. The end of the section notes the volatility of the concept of judicial deference given the changing nature of the bench and political factors.

The Chapter Summary states that the agency decisions are based in reason, follow past practices, and are flexible to changing conditions.

The Advanced Studies displays documents about discretion and abuse of discretion.