Self-Represented Litigants, Active Adjudication and the Perception of Bias: Issues in Administrative Law

Abstract

This paper advocates for a more active role for adjudicators, one in which they provide direction to parties and actively shape the hearing process. Indeed, active adjudication can be an important access to justice tool. Without some direction and assistance from the adjudicator, growing numbers of self-represented litigants cannot meaningfully access administrative justice. Importantly, however, as the role of the adjudicator shifts, so too must our understanding of the notion of impartiality. If it is unfair to expect self-represented litigants to navigate the hearing process without adjudicative assistance and direction, it is also unfair to insist on a vision of impartiality that prevents adjudicators from actively managing the hearing process. To that end, the author develops the notion of “substantive impartiality” to show how existing legal principles can accommodate a more active role for the administrative adjudicator. The author also makes practical recommendations and suggests how administrative tribunals can help self-represented litigants understand the principles and procedures related to bias allegations.

Keywords: administrative law, self-represented litigants, impartiality, bias, access to justice