Designing the Decider

19 Pages Posted: 8 Sep 2017 Last revised: 17 Apr 2018

Date Written: September 4, 2017

Abstract

The Administrative Procedure Act (APA) contains several provisions designed to ensure that presiding officials in so-called formal adjudications are able to make fair, well-informed, independent decisions. But these provisions do not apply to the vast majority of federal adjudicatory hearings. In this world of adjudication outside the APA, agencies enjoy broad procedural discretion, including substantial freedom to “design the decider.” This Article defines the scope of this discretion and explores how various agencies have exercised it. The discussion is enriched by examples drawn from an expansive new database of federal adjudicatory procedures. The Article argues that, although agency discretion to design the decider has benefits, it also imperils independent decision making, destroys government-wide uniformity, and undermines transparency.

Keywords: administrative law, procedure, discretion, adjudication, administrative judges, Administrative Procedure Act

JEL Classification: K23

Suggested Citation

Bremer, Emily S., Designing the Decider (September 4, 2017). 16 Geo. J.L. & Pub. Pol'y 67 (2018), Available at SSRN: https://ssrn.com/abstract=3032560

Emily S. Bremer (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States
5746311511 (Phone)

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