Document Type
Article
Publication Date
2019
Publication Information
2019 Wisconsin Law Review 1351.
Abstract
The standard narrative envisions administrative law as a quasi-constitutional field with the Administrative Procedure Act (APA) as its superstatute backbone. In rulemaking and judicial review, this narrative is compelling and has facilitated judicial and scholarly rejection of agency claims to “exceptionalism,” i.e., exception from uniform, cross-cutting administrative law principles. This Article argues that there is a significant omission from the standard narrative: adjudication. Here, Congress, the courts, agencies, and scholars have embraced the use of unique institutional structures and procedural rules tailored to suit the needs of individual agencies and regulatory programs. As a consequence, most adjudication is conducted outside of the APA, which has little role in defining “adjudication” or specifying its minimum procedures. In adjudication, this Article argues, exceptionalism is the norm. On the level of theory, this undermines administrative law’s standard narrative. More practically, although exceptionalism may benefit individual programs, it threatens system-wide harms — to transparency, fairness, and quality procedural design — that escape program-specific evaluation.
Recommended Citation
Emily S. Bremer,
The Exceptionalism Norm in Administrative Adjudication,
2019 Wisconsin Law Review 1351..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1588
Comments
Accepted at the 2018 Yale/Harvard/Stanford Junior Faculty Forum.