Why Bias Challenges to Administrative Adjudication Should Succeed

23 Pages Posted: 24 Feb 2017 Last revised: 26 Feb 2017

Kent H. Barnett

University of Georgia Law School

Date Written: February 22, 2017

Abstract

How much confidence would you have in a judge whom your opponent hired, can pay bonuses to, and can seek to discipline or remove? I recently argued that numerous administrative adjudicators very likely suffer from an unconstitutional appearance of partiality because the agencies that are often parties in administrative hearings can hire, pay bonuses to, discipline, and remove these adjudicators.

In this Article for the Missouri Law Review’s Symposium on A Future Without the Administrative State?, I contend that challenges to adjudicators’ appearance of partiality are well positioned to be part of the new wave of structural challenges to the administrative state. First, prohibiting administrative adjudicators’ partiality, unlike some other structural areas, does not require overruling prior decisions and relies heavily on the Court’s recent precedent. Second, partiality challenges fit comfortably within the Court’s penchant for formalism and prophylaxes in structural constitutional matters. Indeed, formalism is much more justified for partiality challenges than certain other structural issues and has a longer jurisprudential provenance. Finally, as compared to other proposed challenges to the administrative state, challenges based on administrative partiality are more likely to earn enough votes to succeed.

Suggested Citation

Barnett, Kent H., Why Bias Challenges to Administrative Adjudication Should Succeed (February 22, 2017). Missouri Law Review, Vol. 81, p. 1023, 2017; University of Georgia School of Law Legal Studies Research Paper No. 2017-09. Available at SSRN: https://ssrn.com/abstract=2922150

Kent Harris Barnett (Contact Author)

University of Georgia Law School ( email )

225 Herty Drive
Athens, GA 30602
United States

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