The New World of Agency Adjudication

58 Pages Posted: 6 Mar 2018 Last revised: 3 Sep 2020

See all articles by Christopher J. Walker

Christopher J. Walker

University of Michigan Law School

Melissa F. Wasserman

University of Texas at Austin - School of Law

Date Written: February 24, 2018


In 1946, the Administrative Procedure Act (APA) set forth the criteria for “formal” adjudication, requiring an administrative law judge to make the initial determination and the agency head to have the final word. That is the lost world. Today, the vast majority of agency adjudications Congress has created are not paradigmatic “formal” adjudications as set forth in the APA. It turns out that there is great diversity in the procedures by which federal agencies adjudicate. This new world involves a variety of less-independent administrative judges, hearing officers, and other agency personnel adjudicating disputes. But, like in the lost world, the agency head retains final decision-making authority.

In 2011, Congress created yet another novel agency tribunal — the Patent Trial and Appeal Board (PTAB) — to adjudicate patent validity disputes between private parties. Questions abound concerning the PTAB’s proper place in the modern administrative state, as its features depart from the textbook accounts of APA-governed “formal” adjudication. Many of these questions are working their way through the Federal Circuit and to the Supreme Court. Indeed, the Supreme Court recently held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents—while expressly leaving open many questions concerning the limits of administrative adjudication.

This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, we find that PTAB adjudication is not extraordinary. But we also identify one core feature of modern agency adjudication that is absent at the PTAB: the Director of the Patent and Trademark Office lacks final decision-making authority. To be sure, the Director has some power to influence outcomes: in the past, she has ordered rehearing of cases and stacked the board with administrative patent judges who share her substantive vision. But these second-best means of agency-head control raise problems of their own, including constitutional questions and inefficiencies in agency performance. This Article concludes by exploring alternative mechanisms that would remedy the lack of agency-head review at the PTAB.

Keywords: administrative law, patent law, agency adjudication, PTAB, Oil States

Suggested Citation

Walker, Christopher J. and Wasserman, Melissa F., The New World of Agency Adjudication (February 24, 2018). California Law Review, Vol. 107, pp. 141-197, 2019, Ohio State Public Law Working Paper No. 438, C. Boyden Gray Center for the Study of the Administrative State Research Paper No. 18-XX, Available at SSRN: or

Christopher J. Walker (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States


Melissa F. Wasserman

University of Texas at Austin - School of Law ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States

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