Abstract

https://ssrn.com/abstract=2409944
 


 



Choosing a Court to Review the Executive


Joseph Mead


Cleveland State University

Nicholas A. Fromherz


Lewis & Clark Law School

2015

Administrative Law Review, Vol. 67, Issue 1, Pages 1-62, 2015
Lewis & Clark Law School Legal Studies Research Paper No. 2014-8

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.

Number of Pages in PDF File: 62


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Date posted: March 17, 2014 ; Last revised: March 20, 2016

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

Contact Information

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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