Boston College Law Review
In Zen Magnets v. Consumer Product Safety Commission, the court barred a federal agency decision maker from participating in a case based on an irrevocably closed mind test satisfied by an open-ended “appearance of impropriety” standard. The decision failed to follow the well-worn path that requires a presumption of honesty, integrity, and good faith for administrative actors. The exclusion from this case, an enforcement action, was based on a single comment made several years earlier in a rulemaking. This action denied unjustly a fair-minded and distinguished agency official from exercising the right and responsibility to participate in an important case. The core of the holding in Zen is predicated on an assumption of mistrust, the exact opposite assumption mandated by the Supreme Court. Were this approach to become the norm, it would chill the essential discourse between agency officials and the public, unnecessarily formalize agency process, and increase the likelihood of uninformed enforcement or regulation. The ramifications and downstream hazards of sanctioning agency decision makers in this manner are obvious and significant. Were Zen followed, it would undermine the system of administrative justice, erode public confidence in agency action, and demonize legions of committed public servants who, in good faith, share their perspectives with those they regulate. The goal is to keep open channels of communication, encourage commentary and public discourse, not chill and suppress this vital means of governance.
Andrew F. Popper,
An Irrevocably Tainted Opinion: Zen's Threat to Public Discourse,
Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/826