Fred Halbhuber, a recent graduate of the Yale Law School, has posted The State-Law Origins of the Appellate Review Model:
Modern administrative law owes much to the appellate model of judicial review. Adherence to this model dictates what courts review (the administrative record), what questions courts decide for themselves (questions of law), and what questions courts defer on (questions of fact). Current literature traces the origins of this “foundational” approach to a series of early-twentieth-century Supreme Court decisions re-interpreting the federal injunctive power. But this account is incomplete. This Article shows that the true origins of the appellate review model lie not in federal equity practice, but in state common law decisions. Over the course of the nineteenth century, judicial review on the common law writ of certiorari—the primary instrument of judicial review in the states—gradually shed its English-law-inspired focus on “jurisdictional” error. Through this selective departure from English precedent, certiorari came to approximate appellate review: confined to the record, de novo on questions of law, and deferential on questions of fact.
By documenting the emergence of this earlier, certiorari-based appellate review model, this Article offers an answer to an enduring mystery at the heart of federal administrative law: where did the Supreme Court get the appellate review model from? This Article argues that, in the early twentieth century, the Court lifted the model from state certiorari practice. In so doing, the Court certiorari-ized the federal injunction. The implications for our understanding of modern judicial review are several, but this Article focuses on one particularly salient issue: the availability of universal relief. The debate on universal relief has thus far focused almost exclusively on federal equity practice. But, as this Article shows, the modern federal injunction has much more in common with state certiorari practice than with nineteenth-century federal equity practice. Looking to state certiorari practice—where courts routinely “set aside,” “annulled,” “vacated,” and “suspended” administrative action universally—offers new support for universal relief.
After tracing the state-law origins of the appellate review model, this Article turns to the debate over the meaning of “set aside” in § 706 of the Administrative Procedure Act (APA). Commentators and judges disagree on whether the APA’s “set aside” language empowers federal courts to vacate agency action universally, or only to ignore the agency action as to the plaintiffs in a particular case. This Article sheds new light on the original meaning of this vague language by demonstrating that, when Congress first introduced the “set aside” term into federal law via the Hepburn Act of 1906, it was transplanting the language from earlier state codes. By documenting how nineteenth-century state statutes used the “set aside” language to describe judicial review, this Article strengthens the case that “set aside” in § 706 is synonymous with “vacate."
--Dan Ernst
