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Columbia Law Review


Professors Currie and Goodman present a comprehensive analysis of the variables that must be isolated and weighed in determining the optimum forum for judicial review of administrative action. While the backdrop for this study is the caseload crisis presently confronting the federal courts of appeals, their discussion illuminates the requisites for optimum judicial review generally. Failing to perceive any compelling reason to single out administrative cases for review in separate courts, the authors argue against the creation of special administrative appeals courts. Even if such courts were to enjoy broad subject matter jurisdiction over the most demanding aspects of the agency review caseload, countervailing considerations, such as the danger of improper influence on the appointment process and the loss of the judges' generalist perspective, outweigh the perceived benefits of uniformity, expertise and relief for the regional courts of appeals. As to the optimal forum within the present system of district courts and courts of appeals, the authors divide their discussion into three categories of agency action. With respect to formal agency determinations, the authors generally favor direct appellate court review, except where diversion to the district courts in the first instance is necessary to reduce an appellate workload which has grown to such proportions that it threatens the collegial nature of circuit court decisionmaking; and among two-tier systems, the authors suggest that discretionary appellate review be limited to areas generating a burdensome volume of appeals, involving issues or interests of relative insignificance and not bearing a potential for biased or misguided trial court decisions. Informal rulemaking, generally involving issues of legal importance which are likely to ultimately reach the courts of appeals in any event, is presumptively appropriate for direct appellate review. Despite the absence of a trial-type record, the courts of appeals will not have to engage in extensive factfinding, for any factual issues will increasingly be determined on the basis of materials before the agency, and any need for new factual information will be rare and obtainable by methods short of a judicial trial. In the case of informal .adjudication, however, the absence of a formal adjudicative record justifies a presumption in favor of initial district court review. Informal rulemaking is distinguished, for the issues arising from informal adjudication are likely to involve questions of specific fact, there is little guarantee of any meaningful record for review, and a larger proportion of such determinations are relatively unimportant and unlikely to be taken to the courts of appeals. The authors recognize that direct circuit court review may be appropriate if review is limited to reconstruction of the record before the agency and there is therefore no significant factfinding burden.

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