Choosing a Court to Review the Executive

62 Pages Posted: 17 Mar 2014 Last revised: 20 Mar 2016

Joseph Mead

Cleveland State University

Nicholas A. Fromherz

Lewis & Clark Law School

Date Written: 2015

Abstract

For more than 100 years, Congress has experimented with review of agency action by single-judge district courts, multiple-judge district courts, and direct review by circuit courts. This tinkering has not given way to a stable design. Rather than settling on a uniform scheme - or at least a scheme with a discernible organizing principle - Congress has left litigants with a jurisdictional maze that varies unpredictably across and within statutes and agencies.

In this Article, we offer a fresh look at the theoretical and empirical factors that ought to inform the allocation of the judicial power between district and circuit courts in suits challenging agency action. We conclude that the current scheme is both incoherent and, to the extent it favors direct review by circuit courts, unjustified. We conclude that initial review by district courts is, in general, the better option, and a clear divide is preferable to the ad hoc approach that Congress has favored. Along the way, we offer a new analytical framework for deciding which court should review the executive.

Suggested Citation

Mead, Joseph and Fromherz, Nicholas A., Choosing a Court to Review the Executive (2015). Administrative Law Review, Vol. 67, Issue 1, Pages 1-62, 2015; Lewis & Clark Law School Legal Studies Research Paper No. 2014-8. Available at SSRN: https://ssrn.com/abstract=2409944

Joseph Mead (Contact Author)

Cleveland State University ( email )

Cleveland, OH 44115
United States

Nicholas A. Fromherz

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219
United States

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