Open and Closed Judicial Review of Agency Action: The Conflicting U.S. and Israeli Approaches

Abstract

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.