I think this is an important meta-debate, for it ultimately goes to the issue of why, if at all, we should trust trained lawyers to make judgments about matters that require nuanced assessments of complicated facts. The rationale for administrative agencies, after all, was originally the importance of injecting professional expertise (and taking such judgments away from lawyers and judges who relied on what was increasingly perceived as ideological cant).
Consider the gun control debate for a moment, a toic that Eugene and I are both interested in. One reason, arguably, for the unconstitutionality of so-called "assault weapons" bans, if one assumes, arguendo, that the Second Amendment requires more than minimum rationality, is the fact that the term "assault weapon" does not refer to a natural kind and that the particular law passed by Congress, given the ease of getting around it by relatively minor changes in design, cannot reasonably be thought to be truly efficacious with regard to the end of preventing violence attributed to the use of guns. (Similar arguments arise, of course, with regard to regulation of drugs and the phenomenon of "designer drugs.") Justice Brandeis was famous for his willingness to read tons of excrucitatingly factual material on industrial processes, whereas Holmes notably said "I hate facts" (as is revealed by almost any of his opinions--he never actually names Eugene Debs, for example, or gives the reader the slightest understanding of who Debs was, beyond a speaker in Canton, Ohio). All of this being said, I can understand Eugene's reluctance to have us turn into a list debating technical materials. (Imagine that we were an administrative law list debating at length about whether a particular matter *is* carcinogenic, rather than whether a reasonable administrator might think so (even though others might not.) sandy
