CHOOSING A COURT TO REVIEW THE EXECUTIVE

• 成果类型: Article
• 署名作者: Mead, Joseph; Fromherz, Nicholas
• 署名单位: University System of Ohio; Cleveland State University; University System of Ohio; Cleveland State University
• 刊物名称: ADMINISTRATIVE LAW REVIEW
• ISSN/ISSBN: 0001-8368
• 发表日期: 2015
• 页码: 1-63
• 关键词: federal-courts; administrative action; agency adjudication; specialized courts; decision-making; district court; judges; ideology; appeals; forum

摘要

For more than one hundred 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, unjustilied. 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.