Document Type
Article
Publication Date
2021
Publication Information
99 Wash. U.L. Rev. 377 (2021).
Abstract
Modern administrative law understands the Administrative Procedure Act (APA) to establish an informal and a formal procedural mode of two types of agency action: rulemaking and adjudication. This Article argues that this understanding, which is sound as applied to rulemaking, is wrong as applied to adjudication.
Revisiting the voluminous and long-neglected research that informed the APA, this Article argues the statute codified informal and formal stages—not modes—of adjudication. In this staged process, informal procedures such as investigations, examinations, inspections, and conferences are used in the initial stages of the process and are sufficient to finally dispose of the vast majority of cases. A statutory hearing requirement directs an agency to elevate the few remaining disputes to a subsequent hearing stage, which across agencies reflects a singular vision as to its purpose, timing, and procedural characteristics.
Understanding adjudication as a staged process makes the APA’s regime coherent and offers new insights into the statute’s conceptual foundation. It clarifies that an adjudicatory “hearing” under the APA is formal, while amplifying principles that appropriately can be used to cabin hearings and effectuate Congress’s preference for agency over judicial resolution of administrative disputes. It provides a compelling explanation for the APA’s failure to establish minimum procedural requirements for informal adjudication. And once hearings are removed from this category, it emerges that informal adjudication may be better characterized as executive than quasi-judicial. Modern administrative law admits of this possibility, but the APA is blind to it because the statute was founded upon a conception of administrative action as purely quasi-legislative and quasi-judicial and fundamentally not executive. This Article thus identifies a serious, unacknowledged problem: the APA’s conceptual foundation has become antiquated.
Recommended Citation
Emily S. Bremer,
The Rediscovered Stages of Agency Adjudication,
99 Wash. U.L. Rev. 377 (2021)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1589
Comments
Awarded the 2023 Emerging Scholar Award by the American Association of Law Schools Section on Administrative Law
Reviewed by Christopher Walker, Unearthing the Lost World of APA Adjudication, JOTWELL (Aug. 30, 2021)
Accepted at the Fifth Annual Administrative Law New Scholarship Roundtable
Highlighted on the Legal Theory Blog