Rethinking Judicial Review of High Volume Agency Adjudication

67 Pages Posted: 22 Sep 2017 Last revised: 6 Jun 2021

See all articles by Jonah B. Gelbach

Jonah B. Gelbach

University of California, Berkeley - School of Law

David Marcus

UCLA School of Law

Date Written: September 21, 2017


Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief the sort of consideration that an agency buckling under the strain of enormous caseloads cannot. Judicial review thus seems to help legitimize systems of high volume agency adjudication. Even so, influential studies rooted in the gritty realities of this decision-making have concluded that the costs of judicial review outweigh whatever benefits the process creates.

We argue that the scholarship of high volume agency adjudication has overlooked a critical function that judicial review plays. The large numbers of cases that disability benefits claimants, immigrants, and others file in Article III courts enable federal judges to engage in what we call “problem-oriented oversight.” These judges do not just correct errors made in individual cases or forge legally binding precedent. They also can and do identify entrenched problems of policy administration that afflict agency adjudication. By pressuring agencies to address these problems, Article III courts can help agencies make across-the-board improvements in how they handle their dockets. Problem-oriented oversight significantly strengthens the case for Article III review of high volume agency adjudication.

This Article describes and defends problem-oriented oversight through judicial review. We also propose simple approaches to analyzing data from agency appeals that Article III courts can use to improve the oversight they offer. Our argument comes out of a several-year study of social security disability benefits adjudication that we conducted on behalf of the Administrative Conference of the United States. The research for this study gave us rare insight into the day-to-day operations of an agency struggling to adjudicate huge numbers of cases quickly, and a court system attempting to help this agency improve.

Keywords: civil procedure, litigation, Article III judicial review, administrative review, problem-oriented oversight, agency appeals

Suggested Citation

Gelbach, Jonah B. and Marcus, David, Rethinking Judicial Review of High Volume Agency Adjudication (September 21, 2017). Texas Law Review (2018, Forthcoming), Arizona Legal Studies Discussion Paper No. 17-23, U of Penn Law School, Public Law Research Paper No. 17-53, Available at SSRN:

Jonah B. Gelbach

University of California, Berkeley - School of Law ( email )

215 Law Building
Berkeley, CA 94720-7200
United States

David Marcus (Contact Author)

UCLA School of Law ( email )

3107945192 (Phone)

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