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Rethinking Judicial Review of Administrative Action: A Nineteenth Century Perspective, 32 Cardozo Law Review 2241 (2011)


Nearly a decade ago, Paul Verkuil published an article titled An

Outcomes Analysis of Scope of Review Standards. Paul's article

begins with a wonderfully candid quotation from Judge Pat Wald:

"After fifty years ... we have yet to agree on how this review should

operate in practice. We are still struggling with where to draw the line

between obsequious deference and intrusive scrutiny." Judge Wald

was, of course, talking about the fifty years from the passage of the

Administrative Procedure Act in 1946, which codified the then-evolving

practice of the federal courts under diverse, specific statutory review

provisions and their general federal question jurisdiction.

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