77 Tex. L. Rev. 113 (1998-1999)
Administrative Common Law in Judicial Review

handle is hein.journals/tlr77 and id is 129 raw text is: 






Administrative Common Law in Judicial Review


John F. Duffy*



I. The Origins and Legitimacy of Judge-Made Law in Judicial
     Review of Federal Agency Action    ..................            121
     A. Early Administrative Law and the Federal Common Law of
          Chancery .   ............................. 121
          1. Obtaining Judicial Review Through Equity  .......     122
          2. Statutory Authorization for the Federal Common Law of
               Chancery ............................. 126
     B.   The APA and Its Reception in the Era of the New Federal
          Common Law ............................. 130
     C. Powell's Cannon Dissent and a Restoration of the Limits on
          Federal Common Law ....................... 139
     D. The Continuation      of Equity   as Statutorily Authorized
          Common Law ............................ 146
          1. Rediscovering the Statutory Basis of Nonstatutory
              Review ............................... 147
          2. Rediscovering Equity ...................... 149

II. Darby v. Cisneros and the Death of Exhaustion Doctrine in APA
     Cases ..................................... 152
     A. The Origins of Exhaustion and Its Incorporation Into APA
          Cases ..................................                   154
     B.   The APA, Exhaustion and Darby ................. 156

III. The Creation of Ripeness Doctrine as New Federal Common
     Law and the Beginnings of Its Demise in APA Cases .......    162
     A. Abbott Laboratories and the Creation of Ripeness..... .163
     B.   The Historical Origins of Ripeness Doctrine .........   166


   * Assistant Professor of Law, Benjamin N. Cardozo School of Law. For helpful comments and
encouragement, the author thanks Curtis Bradley, Ed Bruce, Neal Devins, Beth Garrett, Steven D.
Gordon, Michael Herz, Gary Lawson, Melanie Leslie, John McGinnis, Richard Nagareda, Michael
Rappaport, Anne Sprightley Ryan, Paul Shupack, Stewart Sterk, Cass Sunstein, Stephen Williams, and
Paul Verkuil. The author also thanks Daniel Feldman, Kiersten Skog, and Sonny Chehl for their
researeh assistance. Copyright 1998 by John F. Duffy. All rights reserved.

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