Judicial Review

Committee:

The Administrative Conference’s Recommendation 73-1, Adverse Agency Publicity examines statements made by an agency or its personnel which invite public attention to an agency’s action and which may adversely affect persons identified therein. This recommendation was produced in an era where adverse publicity was used as a primary method of enforcement by some agencies.

Committee:

This recommendation examines judicial application of an issue exhaustion requirement in preenforcement review of administrative rulemaking.  It urges courts to recognize that issue exhaustion principles developed in the context of adversarial agency adjudications may not always apply in the context of preenforcement review of rulemaking,  but also recognizes that courts generally should not resolve issues litigants did not raise during the...