Law Commons^™

The classic version of the exhaustion-of-remedies requirement generally requires a party to go through all the stages of an administrative adjudication before going to court.  However, the doctrine has developed a new permutation, covering situations where a petitioner for judicial review did follow all the steps of the administrative appeals process, but had failed to raise in that process the issues now sought to be litigated in court.  In those cases, which have been called “issue exhaustion” cases, the thwarted petitioner will likely be out of luck since normally there is no further opportunity to raise the issue at the …

The 1998 Amendments to the Higher Education Act requires that, absent good cause for not doing so, the U.S. Department of Education (“ED”) promulgate all subsequent higher education regulations through a negotiated rulemaking process.  The Act contains detailed consultation requirements and is quite prescriptive concerning the selection of members of the negotiating committee, which is tasked with seeing consensus on the text of a proposed rule (that is then subjected to the regular notice-and-comment rulemaking process).  In addition, ED rulemaking is subject to a statutory 360-day deadline, and any final rules containing regulatory changes must be published by November 1 …

Introduction: As the ADR movement made its way from the courts to the agency hearing rooms in the 1980s, negotiated rulemaking (sometimes called "regulatory negotiation" or simply "reg-neg") also emerged on a parallel track as an alternative to traditional procedures for drafting proposed regulations. This exemplar of regulatory reform was based on two insights: (1) that the usual process of written notice-and-comment rulemaking has an intrinsic weakness because stakeholders engaged in it do not interact with each other or with the agency; and (2) in certain situations, it is possible to bring together representatives of the agency and the various …

Introduction: In President Bush's first press conference after the bitter 2004 election, he remarked:"With the campaign over,Americans are expecting a bipartisan effort and results." l He also commented that," [O]ne of the disappointments of being here in Washington is how bitter this town can become and how divisive. I'm not blaming one party or the other. It's just the reality of Washington, D.C ... It also makes it difficult to govern at times."2 The President actually took a first step to promoting bipartisanship and reducing bitterness in Washington a few days before the election on October 30, 2004, by signing …