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A fundamental issue of judicial review of administrative agency action is what materials a reviewing court is permitted to consider. Under a system of closed review, the reviewing court cannot consider evidence that was not introduced at the agency level, reasons that the agency did not assert when it made the decision, or arguments that were not advanced at the agency level. A system of open review permits the agency to consider new evidence, reasons, and arguments. The United States usually practices closed review of all forms of agency action (including formal and informal adjudication, rulemaking, and policy implementation). In contrast, Israel often allows open review of all forms of agency action (even though Israelâ–™s system of administrative law is derived from the British model of closed review). This Article seeks to describe and explain this marked difference. In part, the difference relates to the fact that the United States relies much more heavily than does Israel on the initial decision rather than on judicial review to reach the correct result. As a result, in the United States agencies are required to observe decision-making procedures at the initial decision level that ensure the assembly of a record and a set of reasons suitable for judicial review, whereas this is not the case in Israel. In addition, Israeli practices relating to standing, jurisdiction of the Supreme Court (which serves as the trial court for important administrative law cases), the scope of judicial review, and doctrines of selective enforcement all differ sharply from the corresponding practices in the United States. These Israeli practices could not function well under a system of closed review.

Regulatory and benefit-distribution schemes give rise to large numbers of individualized disputes between government agencies and private parties. Every country needs a system of administrative adjudication to resolve such disputes accurately, fairly, and efficiently. Such systems generally provide for three phases—initial decision, administrative reconsideration, and judicial review. However, the details of the various systems employed around the world are bewilderingly diverse, and different countries tend to invest most of their adjudicatory resources in only one of the three phases (and private parties who have a dispute with government tend to have more confidence in one of the phases than in the other two). This Article proposes a methodology for classifying such systems. It identifies four key variables: combined-function agencies or separate tribunals, adversarial or inquisitorial procedure, judicial review that is either open to introduction of new evidence or closed to new evidence, and judicial review by generalized or specialized courts. The Article identifies five models in common use around the world that involve different combinations of these variables. The United States, for example, uses combined-function agencies, adversarial procedure, and closed judicial review in generalist courts. On the other hand, the United Kingdom employs an independent tribunal to reconsider initial agency decisions. And France employs open judicial review in a specialized court. Each of these models can deliver accurate and efficient decisions while preserving fairness. Finally, the Article discusses transplants from one administrative adjudicatory system to another. There are numerous examples of successful transplants. The Article suggests that the United States should consider adopting a social security tribunal (similar to the tribunals in the United Kingdom and Australia) to replace the present system of adjudication of social security disputes.

The California Law Revision Commission has been working for ten years on administrative law reform. This work resulted in one solid success--enactment in 1995 of a new Administrative Procedure Act for adjudication. The new APA modernized California's APA by providing an administrative law bill of rights for litigants before agencies not covered by prior law. It also introduced some important reforms such as informal hearings and alternate dispute resolution. The Law Revision Commission also suffered two ignominious failures: its judicial review reform bill was killed in a state senate committee and a modest set of rulemaking reforms passed the legislature but was vetoed by the governor. This article analyzes the politics of state administrative procedure law reform in California, identifying the relevant players and pointing out the pitfalls that any state administrative law reform is likely to encounter. Reformers must enlist a powerful political patron to back the project and must be prepared to compromise until virtually all serious opposition is neutralized. They must articulate a powerful intellectual case for reform, in order to counter the cliche "if it ain't broke don't fix it." In particular, there must be some benefit in the reform package for state agencies so that they have a reason to buy in. For example, a provision for informal hearings or a provision that allows an agency to adopt precedent decisions without going through rulemaking might be attractive to agencies. Agencies will staunchly resist reforms that increase their costs (for example, by required rulemaking) or reduce their autonomy or power (for example, by stripping them of their administrative law judges or diminishing their ability to overturn ALJ findings). Similarly, the private sector will resist reforms that diminish procedural or judicial review protections. Many people will mistrust and misunderstand any reform effort. In the nature of the political process, it is easy to kill legislation (especially when generous campaign contributors are trying to kill it) and hard to pass it. Therefore, reformers must be as inclusive as possible during the drafting of legislation so that all major players can have input into the process. It will often be necessary in this process to scale back ambitious reform proposals and make timely compromises. Failure to recognize these realities of political life doomed the Law Revision Commission's judicial review bill. The article surveys existing Pennsylvania administrative law which is relatively primitive. The waves of reform marked by the 1961 and 1981 Model State Administrative Procedure Acts have largely passed Pennsylvania by. The lack of statutory law has forced Pennsylvania courts to reform administrative procedure by applying the state constitution. These decisions seem ill-informed and they unduly constrain the legislature. On the other hand, Pennsylvania's system of uniform administrative procedural rules is a significant innovation. Pennsylvania administrative law needs updating, but the process of achieving reform will be tedious and difficult. The California experience should prove valuable to Pennsylvania as it undertakes this process.

Recent scholarship by Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast,' and by Arthur Lupia and McCubbins,2 sheds new light on an important administrative law subject: the rationale for and the utility of the procedures that an administrative agency must follow in order to adopt rules. According to the Administrative Procedure Act ("APA"), an agency must give public notice of a proposed rule and allow any interested person to provide written comments on that rule.3 The agency must also supply a concise statement of the basis and purpose of a rule when it is adopted.4 A final rule must be published in the Federal Register,5 and its effective date must be delayed until thirty days after publication.6 What purposes does the notice-and-comment procedure serve? While the legislative history of the APA is unilluminating, courts and commentators have identified two significant purposes. The first is utilitarian, and the second is drawn from political theory. The utilitarian purpose is that the notice-and-comment procedure produces better rules than a regime lacking such procedure. When evaluated by the conventional utilitarian calculus,7 this congressional insight seems correct. The