Citizens to Preserve Overton Park v. Volpe
54 Pages Posted: 19 Jan 2005
Date Written: Fall 2004
This essay is one of a series destined to appear in a Foundation Press book, Administrative Law Stories, now set for publication in the fall of 2005. The decision in Citizens to Preserve Overton Park v. Volpe represents a transition from political to judicial controls over decisions broadly affecting a wide range of community interests. Unmistakable and dramatic as it is, that transition is not universally applauded. But the transition was striking and quick. The late sixties and early seventies saw an explosion of new national legislation on social and environmental issues, that often provided explicitly or implicitly for citizen remedies. In many respects, Overton Park marked the turn. It was an example, as well, of the success of highly motivated recent law school graduates in contributing to major developments in national law. If for that reason alone, it is a fitting subject for a collection of essays intended to give students a more concrete sense of their subject.
Stories are uniquely the product of a narrator's vision. For a case, like this one, that has appeared to different participants in remarkably different ways, what seems appropriate is to attempt to see how the course of events leading to decision in Overton Park might have appeared through a number of eyes. Of course, the reader has only one narrator; but he has attempted to people the pages of the essay and evoke their varying perspectives as faithfully as his research and capacity for empathetic understanding permit. Much of what follows draws on an earlier essay, Revisiting Overton Park, which appeared in the pages of the UCLA Law Review in 1992 and on the sensitive story-setting "reply" contributed by Prof. Lucie White. The release of the papers of Justices Blackmun, Brennan and Marshall for public view, and the availability of transcripts of oral argument in the United States Supreme Court library and litigation files in the possession of CPOP Attorney John Vardaman, have permitted supplementing the 1992 account.
Keywords: Overton Park, arbitrary and capricious, judicial review, abuse of discretion, Supreme Court
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