Making Sense of Issue Exhaustion in Rulemaking

26 Pages Posted: 20 Oct 2017

See all articles by Ronald M. Levin

Ronald M. Levin

Washington University in St. Louis - School of Law

Date Written: October 15, 2017


When reviewing the validity of a rule, should a court consider issues that were not presented to the agency during the underlying rulemaking proceeding? In 2015, the Administrative Conference of the United States explored this question, drawing upon a consultant’s report prepared by Professor Jeffrey Lubbers, but did not reach a consensus on how to answer it. This essay, written to accompany the publication of the Lubbers report, proposes some answers. The thrust of the analysis is that judicially imposed requirements for issue exhaustion in rulemaking are, in general, legitimate, even in the absence of legislation that specifically authorizes such requirements. However, an exception should be recognized with respect to key assumptions of the rule and of the procedure that gave rise to it. These principles should apply both to judicial review litigants who previously participated in the rulemaking and to defendants who first encounter a rule when the government commences enforcement proceedings against them.

Keywords: administrative law, judicial review, rulemaking, exhaustion, issue exhaustion

Suggested Citation

Levin, Ronald M., Making Sense of Issue Exhaustion in Rulemaking (October 15, 2017). Administrative Law Review, Forthcoming, Washington University in St. Louis Legal Studies Research Paper 17-10-03, Available at SSRN:

Ronald M. Levin (Contact Author)

Washington University in St. Louis - School of Law ( email )

Campus Box 1120
St. Louis, MO 63130
United States
314-935-6490 (Phone)
314-935-5356 (Fax)

Here is the Coronavirus
related research on SSRN

Paper statistics

Abstract Views
PlumX Metrics