Developments in Administrative Law and Regulatory Practice 2003-2004




Murphy, Richard

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American Bar Association


The Supreme Court’s opinions in the war-on-terrorism cases address grand issues concerning access to the courts for review of executive action, and might reasonably fit into a chapter entitled “Judicial Review” in a book devoted to recent developments in administrative law broadly construed. Nonetheless, this chapter leaves that discussion to other chapters, in favor of more workaday but generally applicable developments. Even this limitation leaves far too much information to cover because, as always, the courts have handed down numerous opinions illuminating (or obscuring) preclusion, ripeness, standing, exhaustion, application of the arbitrary-and-capricious standard of review, and the propriety of remand without vacation. As, alas, both life and this chapter must be short, this summary will (somewhat arbitrarily) focus on just three areas that have seen particular foment over the past year: the meaning of “agency action,” the “finality” requirement that agency action have “legal consequences,” and, inevitably, the unfolding Mead/Chevron doctrine.



terrorism, war on terrorism, Supreme Court, Chevron, finality requirement, Mead