I have a dark confession: I probably won’t teach exhaustion to my administrative law students. My syllabus covers
ripeness/standing, the “final agency action” requirement, mootness,
and, yes, exhaustion. But to my shame, I include this disclaimer: “May be cut if insufficient time.” Sure, I try to justify this decision to myself. I think: “Well, with just three credits, it is hard to teach everything. Realistically, what can I cut? Formal rulemaking? Come on. And if students are interested in these sorts of questions, they really should take Federal
Courts anyway, which, ehh, you know, kind of touches on some of these topics.” Lawyers are good at self-justification. But my heart is uneasy. Can someone really take administrative law
without learning exhaustion? It’s certainly not covered in “Leg Reg.” Thankfully,
this week the D.C. Circuit offered an excellent tutorial. Read more...