The question whether the term “set aside” in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally—as opposed to setting aside the rule solely as to the plaintiffs—is a significant and contested one. This Essay traces the history of the statutory term “set aside” from its origins in the 1906 passage of the Hepburn Act to its 1946 placement in the APA. During this era, Congress repeatedly used the term “set aside” in agency review statutes. This Essay argues that, in doing so, Congress did not intend to depart from the underlying remedial framework created by the law of judgments and equity. The traditional approach limited the ability of a stranger to litigation to enforce a judgment previously obtained by another, even if the stranger proceeded on the same legal theory. The Essay explains how that traditional approach continues to apply in challenges to agency “adjudications” and offers some reasons for why the same approach ought to apply in challenges to those agency actions that are categorized as “rulemakings.”
The Path of Administrative Law Remedies,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol98/iss5/6