The Timing of Judicial Review of Administrative Decisions: The Use and Abuse of Overlapping Doctrines

Abstract

There are several gate-keeping devices by which a court may defer its examination of challenges to the action or inaction of administrative agencies. Central among such devices are the doctrines of exhaustion of administrative remedies, ripeness, and the requirement of final agency action. These doctrines, as is discussed in detail throughout this Article, substantially overlap in untidy ways, generating great unpredictability in their application. It can be argued that such un- predictability is harmless in that the same judicial result can be reached by employing each of the above doctrines according to taste.' More may be at stake, however, than mere jurisprudential fastidiousness. This Article will argue that the gate-keeping doctrines, such as exhaustion, ripeness, and finality, more strongly implicate constitutional considerations than is commonly recognized; that they implicate such constitutional concerns in more than just the Article III sense of the presence or absence of a requisite case or controversy; and that there is no guarantee that the gate-keeping doctrines are utterly fungible in these respects.