Petition For Review Research Articles

Optimalisasi Peran Hakim Agung dalam Penyelesaian Perkara Kasasi dan Peninjauan Kembali

This article aims to provide knowledge and understanding on the functions of the state law enforcement agencies in Indonesia. Differences of powers and functions of law enforcement agencies such as the Supreme Court, Attorney General’s Office and the Constitutional Court needs to be understood in depth. Furthermore, given the problems in all courts all over the world which is, among others, the slow settlement of cases, this article describes and analyses the role of Supreme Court Justices in resolving cassation and review cases before and after the issuance of the decree of the Chief Justice Number 119/KMA/SK/VII/2013 regarding the determination of the Day of Deliberation and Pronouncement and Number 214/KMA/SK/XII/2104 concerning Time Period for the Handling of Cases at the Supreme Court. However, when Constitutional Court pronounced Ruling Number 34/PUU-XI/2013 a problem arises in which the products of the two state judicial bodies seem to be inconsistent, especially in the framework for the resolution of criminal cases. On the one hand, the Supreme Court wants the creation of a judicial process that is simple, speedy, and low cost through the strengthening of the two products above, but on the other hand the Constitutional Court through its award extend the time span of litigation process for the settlement of review cases which can be done repeatedly. Thus, in order to provide legal certainty, the Supreme Court issued Supreme Court Circular Number 7 Year 2014 which essentially affirms that the petition for review in criminal cases is limited only one time based on other legal basis namely Judicial Authority Act and Supreme Court Act.

The Era of Second Review Petition - Curative Petition

The article is on the curative petition. A curative petition concept is introduced by Supreme Court in "Rupa Ashok Hurra vs Ashok Huurra". This Curative Petition is sometime also called second review petition. Supreme Court has introduced this concept in order that there should not be miscarriage of justice and principles of natural justice must be followed even at last stage of appeal. The article talks about use and misuse of this doctrine. Various strict grounds are available for filling the curative petition and its success ratio is negligible.

Finality and Judicial Review under the Immigration and Nationality Act: A Jurisprudential Review and Proposal for Reform

Under the Immigration and Nationality Act (INA), aliens may petition for judicial review of an adverse decision of the Board of Immigration Appeals (Board) as long as that decision constitutes a “final order of removal.” Usually it is not difficult to ascertain when an alien should file her petition: the thirty-day statutory filing deadline begins to run when the Board issues a decision that affirms the immigration judge’s removal order in its entirety. In some cases, however, an alien seeks multiple forms of relief from removal in a single proceeding. When that occurs, some forms of relief might be granted, while others are denied or require a remand to the immigration judge for further proceedings. This hybrid “mixed” decision often leaves aliens and attorneys wondering when the removal order becomes final, and thus when they should file a petition for review. When the Board issues its decision? Or at the conclusion of the remanded proceedings? Which order constitutes the “final order of removal” for purposes of judicial review? The implications are profound. If an alien misses the correct deadline, she may lose her ability to challenge the denial of relief from removal. Alternatively, if she files the petition too soon, the court may dismiss it as premature, which consumes time and resources for the alien, the courts, and the government alike. Unfortunately, neither the statute nor the decisions of the courts of appeals provides clear guidance on this question. Nonetheless, the Ninth Circuit has recently issued an important en banc decision on finality for purposes of judicial review that provides a useful starting point from which to clarify this convoluted area of law. This Article is an attempt to bring clarity to the issue of finality for purposes of judicial review. Using the Ninth Circuit’s decision in Abdisalan v. Holder as a frame of reference, the Article addresses how the INA and its implementing regulations contemplate “finality,” while also highlighting the conflicting manner in which the courts of appeals have thus far treated finality. This Article then proceeds to consider the Ninth Circuit’s en banc decision in Abdisalan, noting its importance in establishing a more or less uniform definition of finality within that circuit, while also exploring some concerns about the scope and limitations of that decision. Finally, to address broader inconsistencies amongst courts of appeals, this Article proposes two possibilities for reform: (1) a uniform definition of finality adopted across the courts of appeals; and (2) statutory reform that would define specifically and exhaustively what constitutes a final order of removal for purposes of judicial review.

The Right to Choose Counsel in the Pre-trial Stage of Criminal Proceedings and Consequences of its Violation, by Example of Estonian Supreme Court Decision 3-1-2-2-14

 The right to counsel is one of the most important rights that accused persons have in criminal procedure, as it helps to guarantee that all other rights of accused persons are respected throughout the procedure. According to the European Convention on Human Rights, the accused has a right to either choose counsel or be provided with legal-aid counsel. Exercising the right to choose one’s counsel is the better option of the two, since it gives the accused an opportunity to choose counsel whom he trusts. Therefore, it is absolutely necessary that the authorities not restrict an accused person’s choice in this connection unless there is compelling reason to do so. When the authorities have failed to honour this obligation, violation of Article 6 of the convention has occurred, as the European Court of Human Rights declared on 30 May 2013 in the case Martin v. Estonia. The Court stated that not only was Estonia to pay damages but it also had to take into account that retrial, reopening of the case, or a review of it may be an appropriate way of redressing the violation. Although Martin’s counsel filed a petition for review with the Estonian Supreme Court afterward, the Supreme Court refused to reopen the case, proceeding from what the author of the article considers to be purely formal arguments. In the article, the author offers her opinion about how the Supreme Court should have acted in order to cure the violation of the right to choose counsel in Martin’s case.

Innocuous Time-Saver or Counter-Majoritarian Loophole? The Cert Pool and Policy on the U.S. Supreme Court

Since 1972, the certiorari petitions that arrive at the Supreme Court are randomly assigned for review to one of the five to eight justices who are members of the Supreme Court cert pool. Justices who are not members of the pool still review each petition. Thus, some petitions for review are evaluated by as few as two justices (or their clerks), and the rest of the Court relies on the recommendations of these justices. This practice has been criticized for its potentially counter-majoritarian implications. Formalizing the communication between the better-informed justices who review a petition and the rest of the Court as a sender-receiver game, I assess the circumstances under which the Court median's preferred policy outcome is subverted. Then, I analyze the decision to opt out of the cert pool. In some equilibria, the cert pool can move policy away from the median justice; in others (specifically, those in which one justice on each side of the median opts out of the cert pool) it is predicted to have no influence. Empirical patterns of cert pool membership in the last eleven natural courts are consistent with equilibrium predictions.

Collective Actions and Joinder of Parties in Arbitration: Implications of DR Horton and Concepcion

Well over a century ago, legal and policy analysts realized that the days of purely individual action in matters of business and labor were over, and that legal rules must adapt to the social and economic power of large corporations. Among the rules that changed were archaic limitations on joinder of claims and parties in litigation and laissez faire “liberty of contract” doctrines invalidating labor legislation. Recently, lawyers representing large corporate employers have urged a revival of old rules limiting class actions and labor rights. But, as this Article will show, it is not at all clear that their clients will benefit from the legal regime the lawyers have created. As long as employers have large workforces working under uniform policies, they will face dozens or hundreds of similar claims challenging pay practices, discrimination, and harassment. Group adjudication arose to address efficiently the many similar claims that arise when large institutions adopt uniform policies. Individual arbitration of such claims may result in fewer claims being filed, especially if confidentiality provisions keep co-workers from learning from each other about how to assert successful claims. But unless or until employers figure out a way to shift all the costs of dispute resolution onto the claimaints (and thus far courts have resisted such efforts), and to silence all claimants and their lawyers, employers will face many similar claims, will be paying part or all of the costs of lots of identical arbitrations, and will be paying lawyers to handle them separately rather than on a classwide basis.The National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.” The National Labor Relations Board (“the Board”) has long held that protected activity includes asserting claims in courts, agencies, and in arbitration. In D.R. Horton, the Board found the NLRA to prohibit enforcement of an employer-imposed requirement that employees waive their right to bring a collective action challenging their working conditions. On petition for review, a divided panel of the United States Court of Appeals for the Fifth Circuit rejected the Board’s determination, holding that the Federal Arbitration Act (FAA) requires enforcement of the mandatory arbitration agreement, including its class action waiver.This Article explains why collective action waivers or requirements to arbitrate individually are unenforceable under the National Labor Relations Act and the Norris LaGuardia Act. The Article also explains why arbitration agreements requiring claims to be brought by individuals are not covered by the Supreme Court’s reasoning in Concepcion and Italian Colors to the extent they prohibit joinder of fewer parties than would be required to bring a large class action and, therefore, remain protected by labor law. The Article notes the inconsistency in the FAA cases about whether agreements can waive the right to file charges with some agencies and courts rather than others and therefore critiques the Fifth Circuit’s ruling that the FAA trumps the employees’ rights under NLRA sections 7 and 8(a)(1) to file group actions in court or arbitration but does not trump section 8(a)(4), which protects the right to file unfair labor practice charges. Finally, the Article raises some questions about the practical wisdom of the courts’ willingness to allow employers to require employees to pursue claims only as individuals. State and federal courts universally allow liberal joinder of plaintiffs and defendants because it is more efficient and avoids some truly thorny issues about the preclusive effect of judgments. The Fifth Circuit majority’s assumption, like the Supreme Court majority’s in Concepcion, that individual determination of claims is better suited to arbitration is simply wrong in many cases. Unless employers can opt out of the usual rules for the binding effects of judgments and the usual rules for joinder of claims and parties, the notion that individual arbitration is superior for everyone (including employers) is simply wrong.

Constitutionality of the European Stability Mechanism in Estonia: Applying Proportionality to Sovereignty

The Supreme Court en banc was forced to make a rushed judgment in a situation of confusion, uncertainty and absence of legal certainty prevailing in the Estonian and the EU legal environment.Dissenting justice Jaak LuikOn 12 September 2012 the Bundesverfassungsgericht gave the green light for Germany to ratify the Treaty Establishing the European Stability Mechanism (ESM Treaty), but made ratification conditional upon international law arrangements to be made to guarantee an interpretation of the ESM Treaty which would be in line with the German Grundgesetz. Although the constitutional challenge in Germany, which is the largest ‘donor’ to the ESM, was certainly of core importance as to whether the member states would be able to launch the mechanism at all, the constitutional challenges in other member states also deserve academic attention. The reference for a preliminary ruling by the Supreme Court of Ireland raised serious questions concerning the conformity of the ESM Treaty with EU law. In its Pringle decision the Court of Justice dismissed the concerns raised in the reference as being unfounded.This article focuses on the compatibility of the ‘emergency voting’ mechanism set out in Article 4(4) ESM Treaty with the principles of democracy, the rule of law and sovereignty raised before the Supreme Court of Estonia. The Constitution of the Republic of Estonia [Eesti Vabariigipõhiseadus] (henceforth: the Constitution) and the Acts of the Republic of Estonia do not foresee a separate constitutional court or the possibility of an individual constitutional petition. Thus, the issue of the constitutionality of the emergency voting procedure contained in the ESM Treaty was raised ex officio in abstract constitutional review proceedings by the Estonian Chancellor of Justice [Õiguskantsler], which ‘in Estonia combines the function of the general body of petition and the guardian of constitutionality.’ The petition for review focused on the fact that substantial budgetary decisions could be made in the future under the emergency voting procedure without the involvement of the Estonian parliament. According to the petition, ‘[w]ith accession to the Treaty the budgetary policy choices of the Riigikogu will diminish.’

Judocracy v. Independence of the Judiciary

This article has been authored in light of the recent review petition filed in the Supreme Court in the matter of Supreme Court Advocates-On-Record Association v. Union of India which brought the present collegium system of appointments of judges into being. This system of appointing the Supreme Court and High Court judges has come under severe criticism due to the opaqueness of the system. The author is of the firm belief that this method of appointment was never envisioned by our Constitutional forefathers and also suggests a suitable alternative to remedy the present state of affairs.

Petitions for review of EPO Appeal Board decisions by the EPO Enlarged Board of Appeal: part III

Julian Cockbain is a Consultant European Patent Attorney based in Oxford, UK.In two earlier articles in this journal 1,2 the author has provided guidance to parties to appeals before the European Patent Office (EPO) as to how to avoid having to have recourse to the petition 3 route should they fail on appeal and how to maximize their chances of success if a petition becomes necessary.To a large extent, the conclusion has been that parties should prepare fully for oral proceedings and should ensure that, at oral proceedings, their requests are made absolutely clear to the Appeal Board. That advice is unchanged.

Selecting the Select Few: The Discuss List and the U.S. Supreme Court's Agenda‐Setting Process

ObjectiveWe investigate whether informational cues differentially affect a petition for review at each stage of the U.S. Supreme Court's agenda‐setting process. We specifically test how the cost of identifying a cue and the degree of information provided within it affect the cue's impact.MethodsWe use a random sample of archival data obtained from the private papers of Justice Harry A. Blackmun to jointly analyze the Court's discuss list and final outcome decisions.ResultsConfirming our expectations, we find that both positive cues and negative cues play different roles across the two stages of the Court's agenda‐setting process.ConclusionsThese findings are noteworthy since they suggest that the impact of some commonly studied case attributes differs between when a case is selected for the initial level of review versus when it is added to the Court's plenary docket.

Review Jurisdiction of Supreme Court of India: Article 137

Article 137 of the Constitution of India, 1950, provides that subject to provisions of any law and rules made under Article 145, the Supreme Court has the power to review any judgment pronounced or order made by it. Under Supreme Court Rules, 1966 such a petition is to be filed within thirty days from the date of judgment or order and as far as practicable; it is to be circulated, without oral arguments, to the same Bench of Judges who delivered the judgment or order sought to be reviewed.Under Article 145(e), the Supreme Court is authorized to make rules as to the conditions subject to which the court may review any judgement or order. In exercise of this power, Order XL has been framed.The word “Review” in legal parlance connotes a judicial re-examination of the case. Therefore, in order to rectify an error and prevent the gross miscarriage of justice, a provision for review has been laid down under the Section 114 of the Code of Civil Procedure which gives a substantive right of review and Order XLVII there under provides for the procedure.Review Petition is dealt with under Section 114 and Order 47 of the CPC. Any party aggrieved by an order or judgement may apply for reviewing the said order or judgement to the same court. It can be filed where no appeal is preferred or in case there is no provision for appeal. Review Petition is a discretionary right of court. The grounds for review are limited. Review is filed in the same court.

Petitions for review of European Patent Office (EPO) Appeal Board decisions by the EPO Enlarged Board of Appeal: part II

Petitions for review of European Patent Office (EPO) Appeal Board decisions by the EPO Enlarged Board of Appeal: part II

'To Remand, or Not to Remand': Ventura's Ordinary Remand Rule and the Evolving Jurisprudence of Futility

It is a foundational principle of administrative law that a reviewing court should not dispose of a petition for review or appeal on grounds not relied upon by the agency, and should not reach issues in the first instance not addressed administratively. In such circumstances, there is a strong presumption that the reviewing court should remand the case to the agency for further proceedings rather than reach out to decide the disputed issues. The United States Supreme Court explicitly extended operation of the “ordinary remand rule” to the immigration context in its 2002 decision in INS v. Ventura. Notwithstanding subsequent Supreme Court clarifications of how this rule operates in immigration law, several federal courts of appeals have begun to develop a jurisprudence of futility, declining to remand cases to the Board of Immigration Appeals, despite errors in the underlying decision, in certain set circumstances.This article assesses this evolving jurisprudence with the aim of discerning whether it is somehow complementary to the “ordinary remand rule,” or runs afoul of the general remand prescription. In fact, many of the cases in which courts have held remand would be futile have little, or nothing to do with the courts’ authority to remand, while a number of the other cases surveyed represent legitimate exercises of the courts’ discretion to decline remand. Nonetheless, several decisions either explicitly contradict the Supreme Court’s remand directive, or give hints that, in certain cases, the court would feel free to decide an issue delegated to the agency’s discretion, even in the absence of an administrative decision in the first instance. Although the decision of whether to hold and decide a case, or whether to remand to the agency for further proceedings, is necessarily a subjective and discretionary determination, the article concludes that there are broad operating procedures that may appropriately govern the exercise of this discretion, ensuring that both reviewing courts and administrative agencies fulfill their mandates.

Comparison between Curative Petition and Second Review Petition

This paper is based on the land mark judgement Rupa Ashok Hurra v Ashok Hurra , in this case Syed Shah Mohammed Quadari, J. held that the next step is to specify the requirement to entertain such a curative petition under the inherent power of this court so that floodgate are not opened for filing a second review as a matter of course in the guise of a curative petition under inherent power. Review petitions have been provided for in the Constitution unlike curative petitions which are a result of a Supreme Court pronouncement. Many questions have been raised, among academics and lawyers, as to whether it was necessary for the Supreme Court to propound the modalities of curative petitions. The term ‘second review petition’ is totally a hypothetical term used purely illustratively. Since April 2002 when the Supreme Court propounded the modalities of Curative petitions, five hundred and sixty eight curative petitions have been filed before the Supreme Court. Such a limitation to the number of times the power of review can be exercised marks the first distinction between a curative petition and a ‘second review petition’.

Introduction

Introduction Melvin I. Urofsky During the nineteen years he served as an Associate Justice of the U.S. Supreme Court, David H. Souter was a good friend to the Supreme Court Historical Society, and we shall all miss not only his presence but his good humor as well. In this issue we are pleased to carry tributes to him by another friend of the Society, former Justice Sandra Day O’Connor, and two of Justice Souter’s former clerks. Heather K. Gerken is currently the J. Skelly Wright Professor at the Yale Law School, and Kermit Roosevelt III teaches law at the University of Pennsylvania. This issue carries an even greater diversity ofmaterials than usual and once again testifies to how extensive we now consider the field of Supreme Court history. Jeffrey L. Amestoy is the retired chiefjustice of the Supreme Court ofVermont and well knows how ajudicial case can affect public policy. His article focuses on Richard Henry Dana, best known to most people for his memoir Two Years Before the Mast (1840). Dana had an eventful life and was known in his time as a champion of two downtrodden groups, sailors and slaves. He served as counsel in one of the first instances in which the U.S. Supreme Court considered the extent of the executive’s war powers— Lincoln’s blockade of Southern ports after the start ofthe rebellion. The litigation, known as the Prize Cases (1863), involved ships seized during the blockade, and ifthe Court had cho­ sen to declare the blockade illegal—as Chief Justice Roger Taney wanted to do—it would have struck a serious blow to the Union. Ac­ cording to ChiefJustice Amestoy, Dana’s skill averted a potential catastrophe. One always hears the phrase “I’ll take it all the way to the Supreme Court,” but we know that in any given Term, the Court routinely turns away literally thousands of petitions for review. The ones that the Court chooses to hear normally deal with questions of consti­ tutional or statutory interpretation. Yet every now and then it chooses to hear something different. U.S. Circuit Court Judge Myron H. Bright tells us about one of those cases, and especially about the dogged determination of a particular lawyer to do right by his client. A Nebraska farmer was found dead in his barn, and while it might have been an acci­ dent, the coroner initially ruled suicide and the v vi JOURNAL OF SUPREME COURT HISTORY insurance company refused to pay on the mod­ est policy. How this case got to the High Court is a fascinating story. Stefanie Lepore graduated from George Washington Law School last year. While there, she wrote a paper on the origins ofthe Court’s practice of seeking the views of the Solicitor General in certain cases. We thought it so good that we are happy to publish it in this issue. The role of law clerks has been the fo­ cus of a number of books and articles in re­ cent years, including some in this journal. All clerks take a vow of secrecy, but over the years information emerges as to how certain Justices interacted with their clerks, the work that clerks performed, and, occasionally, a tid­ bit about some judicial quirk. Richard Arnold clerked for Justice William J. Brennan dur­ ing the Term that the Court heard and de­ cided one of the key cases in the so-called due-process revolution, Mapp v. Ohio (1961), which extended the protections of the Fourth Amendment to the states as well as the federal government. Arnold kept a diary of his time in Brennan’s chambers, and Professor Polly J. Price of the Emory University School of Law uses that diary to explore the Court’s thoughts and processes in deciding Mapp. Finally, under the sponsorship of Justice Ruth Bader Ginsberg, Professor Emerita Jill Norgren gave a slide show presentation to the Association ofthe Bar ofthe City ofNew York in October 2008, and her article in this issue of the Journal grew out of that talk. Professor Norgren, who for many years taught govern­ ment at the John Jay School ofCity University of New York, is...

Petitions for review of European Patent Office (EPO) Appeal Board decisions by the EPO Enlarged Board of Appeal

With the amendment to the European Patent Convention which came into effect in December 2007, there arrived the possibility for those unhappy with a decision by one of the European Patent Office's Boards of Appeal to petition the Enlarged Board of Appeal to review the decision, and return the case for re-hearing. The grounds on which such a petition could be founded are limited but for a patentee whose European Patent has been revoked, a petition represents the only possible way to have his patent reinstated. Unsurprisingly, the majority of petitioners in the first year and a half of the new system have been patentees. Only 1 petition out of the 16 disposed of has been successful and the Enlarged Board of Appeal has shown itself to be expeditious but firm. In this article, the decisions thus far taken by the Enlarged Board of Appeal are reviewed as are the petitions which are either pending or have been withdrawn in order to draw guidance as to how to avoid the necessity of petitioning or how to increase the chances of a petition being successful.

The Food and Drug Administration Agrees to Classify Mercury Fillings

In the United States Court of Appeals of the District of Columbia Circuit, the Appellants Mom's Against Mercury, Connecticut Coalition for Environmental Justice, Oregonians for Life, California Citizens for Health Freedom, Kevin J. Biggers, Karen Johnson, Linda Brocato, R. Andrew Landerman, and Antia Vazquez Tibaul filed a petition for review of Regulatory Inaction by the Food and Drug Administration (FDA). On Monday June 2, 2008, the lawsuit was settled with the FDA after it agreed to classify mercury fillings. During its negotiation session with the Appellants, the FDA indicated that it would change its website on mercury fillings. The FDA no longer claims that no science exists about the safety of mercury amalgam or that other countries have acted for environmental reasons only. On its website, the FDA now states the following: "Dental amalgams contain mercury, which may have neurotoxic effects on the nervous systems of developing children and fetus." The FDA also states that "Pregnant women and persons who may have a health condition that makes them more sensitive to mercury exposure, including individuals with existing high levels of mercury bioburden, should not avoid seeking dental care, but should discuss options with their health practitioner." The FDA decision to classify mercury fillings is a reflection of the legislations enacted in Europe and Canada that highlight the neurotoxic effects of mercury fillings.

The U.S. Supreme Court's In Forma Pauperis Docket: A Descriptive Analysis

The proportion of the U.S. Supreme Court's docket composed of unpaid or in forma pauperis petitions, petitions filed by litigants who cannot afford the Court's filing fee, has consistently outstripped the percentage of cases granted review that originate on the IFP docket. Scholars and jurists alike attach little significance to this apparent disparity because they tend to write off categorically cases on the IFP docket as frivolous and unimportant. Yet given the large and growing number of IFP petitions filed with the Court, this class of cases requires some form of systematic consideration. This article compares a sample of the unpaid petitions for review filed with the U.S. Supreme Court from the 1976 through 1985 terms to a similar sample of paid petitions to determine whether and how the two dockets differ. Examination of the cases indicates that the IFP petitions are not categorically frivolous and unimportant and suggests, as a result, that these petitions require further consideration in the literature on the Supreme Court's agenda setting.

Petition for Review of City of Hope Nat'l Med. Ctr. v. Genentech, Inc.

Petition for Review of City of Hope Nat'l Med. Ctr. v. Genentech, Inc.

Assessing the Assessors: The Actual Performance of Negotiated Rulemaking

Negotiated rulemaking is a process in which representatives of the interests that would be substantially affected by a rule ? including the agency responsible for issuing the rule ? negotiate in good faith to reach a consensus on a proposed rule. It has proven enormously successful in developing agreements in highly polarized situations. Agencies have therefore turned to it to help resolve particularly difficult, contentious issues that have eluded closure by means of traditional rulemaking procedures. Criticism has recently been leveled at negotiated rulemaking on the ground that it has failed to achieve its instrumental goals of saving time and reducing litigation. Professor Cary Coglianese sought to measure whether negotiated rulemaking in fact saved time and reduced litigation by analyzing negotiated rulemaking at EPA, and he found it wanting in both dimensions. He argues that there has been an insignificant savings of time for rules developed through reg neg, and he concluded that rules developed through it are actually challenged more frequently than rules developed by traditional means. Unfortunately, however, Coglianese's research is significantly flawed and hence misleading concerning the actual experience with negotiated rulemaking. First, he misapplies his own methodology by including a rule as a completed reg neg when it should not have been. Given the dynamics of the particular rule and Coglianese's methodology, its erroneous inclusion had a significant effect on the ultimate conclusion. Second, his methodology measures the wrong thing: it fails to account for what the agency was actually trying to accomplish, and hence his results are skewed since the agency achieved its objective long before Coglianese calculations indicated. Third, he does not differentiate a substantive judicial challenge to a rule that was issued substantially as the committee agreed from either those instances in which the agency itself significantly changed the rule after the committee reached consensus and those petitions for review that were filed while the petitioner and EPA worked out minor details. Properly understood negotiated rulemaking has been remarkably successful in fulfilling its promise. In particular, EPA's experience has been that reg neg has cut the time for rulemaking by a third, knocking a full year off the typical schedule. Moreover, no rule that implements a consensus reached by the committee in which the parties agree not to challenge it has ever been the subject of a substantive judicial review ? even though they tend to be far more controversial and complex than average rules. And, finally, as described by a serious empirical study, the participants and those otherwise affected by rules find a range of values in negotiated rulemakings as opposed to those developed traditionally.