Shattering the Fragile Case for Judicial Review of Rulemaking

Posted: 25 Feb 2000

Abstract

This article argues for the abolition of extraconstitutional (e.g., APA) judicial review of administrative rulemaking. It examines the justifications for such review, which I characterize as the rule of law justification, the Marbury justification, the checking justification, the dialogic justification, and the public choice justification. I scrutinize them and find that they rest on descriptively inaccurate assumptions and are each wanting. I conclude by arguing that judicial review necessarily involves political considerations that are ill-suited for the judiciary. Nor is a judicial review necessary, given the availability of congressional and executive review.

JEL Classification: K23, K41

Suggested Citation

Cross, Frank B., Shattering the Fragile Case for Judicial Review of Rulemaking. Available at SSRN: https://ssrn.com/abstract=208368

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