The Exceptionalism Norm in Administrative Adjudication

2019 Wisconsin Law Review (forthcoming)

Notre Dame Legal Studies Paper No. 1914

69 Pages Posted: 13 Mar 2018 Last revised: 23 Jul 2019

Date Written: April 18, 2019

Abstract

The standard narrative envisions administrative law as a quasi-constitutional field with the Administrative Procedure Act (APA) as its superstatute backbone. In rulemaking and judicial review, this narrative is compelling and has facilitated judicial and scholarly rejection of agency claims to “exceptionalism,” i.e., exception from uniform, cross-cutting administrative law principles. This Article argues that there is a significant omission from the standard narrative: adjudication. Here, Congress, the courts, agencies, and scholars have embraced the use of unique institutional structures and procedural rules tailored to suit the needs of individual agencies and regulatory programs. As a consequence, most adjudication is conducted outside of the APA, which has little role in defining “adjudication” or specifying its minimum procedures. In adjudication, this Article argues, exceptionalism is the norm. On the level of theory, this undermines administrative law’s standard narrative. More practically, although exceptionalism may benefit individual programs, it threatens system-wide harms — to transparency, fairness, and quality procedural design — that escape program-specific evaluation.

Keywords: Administrative Law, Administrative Constitutionalism, Adjudication, Exceptionalism, Patent Trial and Appeal Board, Formal Adjudication, Informal Adjudication

JEL Classification: K23

Suggested Citation

Bremer, Emily S., The Exceptionalism Norm in Administrative Adjudication (April 18, 2019). 2019 Wisconsin Law Review (forthcoming); Notre Dame Legal Studies Paper No. 1914. Available at SSRN: https://ssrn.com/abstract=3136793 or http://dx.doi.org/10.2139/ssrn.3136793

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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