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The Future of Administrative Law: Reforming Agency Processes and Court Review of Administrative Decisions


J. Patrick Kelly


Widener University - School of Law

1992

Widener Journal of Public Law, Vol. 1, p. 125, 1992

Abstract:     
This article analyzes proposals to reform agency decision making and then expands the discussion to include broader issues of why agency caseloads are so large, what can be done to reduce them, and what is the appropriate role for the federal courts in reviewing agency policymaking. The proposals include first, Judge Heifitz’s proposals suggestive of a future where alternative dispute resolution (ADR) and automated data processing will lead to more efficient caseload management. He suggests ALJs should remain assigned to particular agencies to best utilize their experience rather than become part of a unified corps able to hear cases before any agency. In analyzing his ADR proposal, I raise a cautionary concern that in many regulatory and benefit claims decisions, government officials act as surrogates for the public. Here government officials have a responsibility to exercise their policy making function and only approve settlements that are consistent with their legislatively-mandated standards.

Second, I analyze James Cawley’s provocative thesis that the Sunshine laws have led to decreased deliberative discussions at multi-member agencies, reduced collegiality, and have resulted in a decline in the importance of agency meetings. I then critically examine his proposal that deliberative discussions by agency members be exempt from the Sunshine laws procedural requirements.

The article then more broadly asks for a rethinking of the benefits claims process and on the regulatory side, a re-examination of standards by which courts review agency regulatory decisions. The fundamental questions are: (1) what is the appropriate role of the federal courts in reviewing executive policymaking, and (2) when is regulatory action necessary to safeguard the public from imperfections in the market place? In the twenty-first century, the United States is in a period of expanding government deficits that inhibit economic growth and burden future generations. Certain fundamental problems of administrative policy that affect agency caseloads and their resolution must be addressed. What benefit programs should be funded and at what levels? What is the proper role of government in our economy? Should the supervision and regulation of banks and savings and loans associations be increased or decreased? What regulatory techniques should be used to improve environmental quality? What is the role of the federal courts in reviewing agency policymaking decisions?

Number of Pages in PDF File: 22

Keywords: administrative law, administrative decision-making, dispute resolution, administrative agencies

JEL Classification: K23

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Date posted: June 7, 2011  

Suggested Citation

Kelly, J. Patrick, The Future of Administrative Law: Reforming Agency Processes and Court Review of Administrative Decisions (1992). Widener Journal of Public Law, Vol. 1, p. 125, 1992. Available at SSRN: http://ssrn.com/abstract=1858864

Contact Information

J. Patrick Kelly (Contact Author)
Widener University - School of Law ( email )
4601 Concord Pike
P.O. Box 7286
Wilmington, DE 19803-0474
United States
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