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[T]his jurisdictional dichotomy has created a confused class of circumforaneous litigants, wandering perplexedly from forum to forum in search of remediation.1
It might surprise the reader fortuitously armed with a dictionary to learn that the object of the above-quoted jurist's ire is a paradoxically little-known and yet oddly pervasive judicial doctrine known as the doctrine of primary jurisdiction. The reader's initial surprise might be further compounded upon learning that the above-quoted jurist is not alone in his frustration with the doctrine. For example, one commentator has characterized the doctrine of primary jurisdiction as being "riddled with exceptions and about as forgiving to litigants as Attila the Hun."2 While another summarized his view of the doctrine in the title of an article he wrote on the subject: Primary Administrative Jurisdiction and the Exhaustion of Litigants.3 At this point, the reader may well be asking what is the doctrine of primary jurisdiction and what about it prompts such criticism?
The doctrine of primary jurisdiction is a judicially created doctrine designed to determine the proper allocation of decisionmaking authority between courts and administrative agencies.4 In its most widely accepted formulation, primary jurisdiction doctrine counsels a court to suspend its consideration of a dispute where some matter or issue in that dispute appears to fall within the scope of an administrative agency's authority.5 The court is then urged to refer that issue - or even the entire claim itself-to the relevant agency so that the agency may bring its own judgment to bear on the issue or matter.6 In a sense, the doctrine creates a jurisdictional right-of-way whereby courts are advised (or directed) to yield jurisdiction over matters before them to the respective agency whose authority has been invoked in the name of primary jurisdiction.
The development of the primary jurisdiction doctrine is a function of the judiciary's recognition that the adjudicatory authority of regulatory agencies will inevitably overlap with the jurisdiction of traditional judicial courts.7 Correspondingly, the doctrine seeks to resolve the potential conflicts and confusion created by such concurrent jurisdiction by authorizing, and sometimes even requiring, a court to defer the resolution of issues before it to the statutorily created authority of the relevant administrative agency.8 Essentially, primary jurisdiction doctrine reflects the judiciary's efforts to respect...