Constitutional Tensions in Agency Adjudication

28 Pages Posted: 11 Dec 2018

See all articles by Christopher J. Walker

Christopher J. Walker

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

Date Written: November 23, 2018

Abstract

Last Term the Supreme Court decided two cases—Lucia v. SEC and Oil States Energy Services v. Greene’s Energy Group—that illustrate the potential constitutional tensions in modern agency adjudication: the importance of political accountability, yet the dangers of political control. As part of the Iowa Law Review’s Administering Patent Law Symposium, this Essay examines these constitutional tensions and assesses two ways the Supreme Court (or Congress) could attempt to resolve them—i.e., by turning to Article III adjudication and by transforming agency adjudicators into “true adjuncts” of Article III courts. The Essay concludes by revisiting the patent adjudication proceedings at issue in Oil States to explore how these constitutional tensions and potential solutions may play out at the U.S. Patent and Trademark Office.

Keywords: agency adjudication, administrative law, PTAB, USPTO, judicial review, Chevron, Chenery

Suggested Citation

Walker, Christopher Jay, Constitutional Tensions in Agency Adjudication (November 23, 2018). Iowa Law Review, Vol. 104, 2019, Forthcoming; Ohio State Public Law Working Paper No. 466. Available at SSRN: https://ssrn.com/abstract=3289634

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

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