Administrative Adjudication and the Rule of Law

Abstract:     
Many scholars have criticized the use of adjudication by administrative agencies as a means of making law. Such scholars have contended that adjudicative lawmaking by administrative agencies suffers from a number of defects - including decreased public participation, a lack of prospectivity, and a tendency to arise in fact-bound circumstances - that make it inferior to legislative lawmaking by administrative agencies. These critiques have led authors to conclude that adjudicative lawmaking by administrative agencies should be discouraged, in all but very limited circumstances.

This paper assesses this conventional understanding empirically within the context of a rule of law framework. It ultimately concludes that - at least from a rule of law perspective - adjudicative lawmaking promotes a number of important "goods." Indeed, there are several respects in which adjudicative lawmaking is not only comparable, but superior, to legislative lawmaking.

These conclusions differ substantially from the conclusions reached by prior scholars. As a result, the paper also rejects the prescriptive conclusions of prior authors, instead concluding that precipitous declines in adjudicative lawmaking by administrative agencies should be arrested or reversed. The paper concludes by briefly discussing potential means of reversing precipitous declines in adjudicative lawmaking, based on the experience of the Board of Immigration Appeals.

Number of Pages in PDF File: 60

Keywords: Administrative Law, Immigration, Adjudication, Rulemaking

Accepted Paper Series