Event Title

Judicial Review of Rulemaking: New Patterns and New Problems

Presenter Information

Frederick Davis

Location

Duke Law School

Start Date

30-1-1981 11:30 AM

End Date

30-1-1981 12:30 PM

Description

The principles that govern judicial power in reviewing challenged administrative rules have never been fully resolved or established. Recent regulatory statutes, particularly the post-1970 pollution control efforts, display differences and contradictions regarding the availability and scope of judicial review that have taxed the analytical capacities of scholars, lawyers, and judges. This article discusses the various statutory patterns of rulemaking review and concludes that the regulatory legislation reflects five distinct patterns. Once these patterns are identified and described, it is possible to explore and appraise the serious problems that confront judges called upon to review rules adopted under legislation that requires judicial review pursuant to one of these five patterns. The article focuses on statutes providing for pre-enforcement review of rules and the problems these statutes create concerning the availability of additional review in enforcement proceedings.

Comments

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Related Paper

Frederick Davis, Judicial Review of Rulemaking: New Patterns and New Problems, 1981 Duke Law Journal 279-308 (1981)

Available at: http://scholarship.law.duke.edu/dlj/vol30/iss2/3


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Jan 30th, 11:30 AM Jan 30th, 12:30 PM

Judicial Review of Rulemaking: New Patterns and New Problems

Duke Law School

The principles that govern judicial power in reviewing challenged administrative rules have never been fully resolved or established. Recent regulatory statutes, particularly the post-1970 pollution control efforts, display differences and contradictions regarding the availability and scope of judicial review that have taxed the analytical capacities of scholars, lawyers, and judges. This article discusses the various statutory patterns of rulemaking review and concludes that the regulatory legislation reflects five distinct patterns. Once these patterns are identified and described, it is possible to explore and appraise the serious problems that confront judges called upon to review rules adopted under legislation that requires judicial review pursuant to one of these five patterns. The article focuses on statutes providing for pre-enforcement review of rules and the problems these statutes create concerning the availability of additional review in enforcement proceedings.