The Rise and Purported Demise of Wong Yang Sung

18 Pages Posted: 11 Nov 2007 Last revised: 24 Dec 2007

Abstract

The Supreme Court's decision in Wong Yang Sung v. McGrath was a decision of some significance in its moment, the central holding of which seemed to establish an important principle in the interpretation of the Administrative Procedure Act (APA). Nevertheless, while the case has never been overruled, it has been relegated to history. After an initial flurry of interest, the case was merely overlooked and then seemingly overtaken by other principles. Today, the case has become little more than a footnote in administrative law. This is unfortunate because Wong took a step that had the promise of establishing uniformity and predictability in the procedure through which adjudication would take place under the APA. The alternate path taken instead has rendered the nature of much federal adjudication either indeterminate or subject to the whim of the agency providing the adjudication.

This Article describes Wong and its central holding interpreting the APA provision with respect to when adjudication is required to follow the procedures contained in the APA. The Article then describes both Wong's immediate history and the subsequent Supreme Court decisions that have left Wong in the dust. Finally, this Article attempts to show that none of these Supreme Court decisions in fact replaces or undercuts the central holding of Wong, and that it is only a misreading of the later cases that has resulted in an abandonment of Wong. Indeed, this Article argues that the original concerns and values the Court recognized in Wong are equally applicable today and that Wong should be rediscovered and given new life.

Keywords: Administrative Procedure, APA, Adjudication, Formal Adjudication, Chevron, Matthews v. Eldridge

Suggested Citation

Funk, William F., The Rise and Purported Demise of Wong Yang Sung. Administrative Law Review, Vol. 58, No. 881, 2006; Lewis & Clark Law School Legal Studies Research Paper No. 2007-18. Available at SSRN: https://ssrn.com/abstract=1028809

William F. Funk (Contact Author)

Lewis & Clark Law School ( email )

10015 S.W. Terwilliger Blvd.
Portland, OR 97219-7799
United States
503-768-6606 (Phone)
503-768-6671 (Fax)

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