The New World of Agency Adjudication

57 Pages Posted: 6 Mar 2018 Last revised: 9 Aug 2018

See all articles by Christopher J. Walker

Christopher J. Walker

Ohio State University (OSU) - Michael E. Moritz College of Law

Melissa F. Wasserman

The University of Texas at Austin - School of Law

Date Written: February 24, 2018

Abstract


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. Today, however, the vast majority of agency adjudications are not paradigmatic “formal” adjudications as set forth in the APA. That is the lost world. 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. Like in the lost world, however, 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 last Term held in Oil States Energy Services that PTAB adjudication does not unconstitutionally strip parties of their property rights in issued patents while leaving many questions about the limits of administrative adjudication unanswered.

This Article situates PTAB adjudication within administrative law’s larger landscape of agency adjudication. By surveying this new world of agency adjudication, it is clear 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: she can order rehearing and stack 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 Jay and Wasserman, Melissa F., The New World of Agency Adjudication (February 24, 2018). California Law Review, Vol. 107, 2019, Forthcoming; Ohio State Public Law Working Paper No. 438. Available at SSRN: https://ssrn.com/abstract=3129560 or http://dx.doi.org/10.2139/ssrn.3129560

Christopher Jay Walker (Contact Author)

Ohio State University (OSU) - Michael E. Moritz College of Law ( email )

55 West 12th Avenue
Columbus, OH 43210
United States
614-247-1898 (Phone)

HOME PAGE: http://www.chrisjwalker.com

Melissa F. Wasserman

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

727 East Dean Keeton St
Austin, TX 78705
United States

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