Document Type

Article

Publication Date

1971

Abstract

There has been recent interest in rationalizing and codifying the opportunities for judicial review of federal administrative determinations outside an enforcement context or special proceedings designated by statute. Abbott Laboratories v. Gardner culminated the development of a strong judicial presumption in favor of such review, founded in general considerations and justified by the broad language of the Administrative Procedure Act (AP A or Act). Since the petitioners in Abbott had theoretical rights to later review of the agency position in enforcement proceedings, the Court called the procedure "pre-enforcement" review. But similar opportunities for immediate and direct review of agency positions at the instance of affected persons not ultimately subject to licensing or sanctions have been developed under the rubric of "standing," and the Court recently brought the two strands together in Association of Data Processing Service Organizations, Incorporated v. Camp. Arguably, a comprehensive right to judicial review of an agency position as such is now recognized, except when there is clear evidence of congressional intent to preclude such review. "Pre-enforcement review" is an unsuitable term to describe what has emerged, as is "non-statutory review" since the rights recognized are grounded in the AP A. And since, as we shall see, timing is not alone at stake, "immediate review" will not do either. We shall use "direct review" here as a generic substitute.


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