The Rediscovered Stages of Agency Adjudication

74 Pages Posted: 5 Mar 2021 Last revised: 26 Mar 2021

Date Written: February 4, 2021

Abstract

Modern administrative law understands the Administrative Procedure Act (APA) to establish an informal and a formal procedural mode of two types of agency action: rulemaking and adjudication. This Article argues this understanding, which is sound as applied to rulemaking, is wrong as applied to adjudication.

Revisiting the voluminous and long-neglected research that informed the APA, this Article argues the statute codified informal and formal stages—not modes—of adjudication. In this staged process, informal procedures such as investigations, examinations, inspections, and conferences are used in the initial stages of the process and are sufficient to finally dispose of the vast majority of cases. A statutory hearing requirement directs an agency to elevate the few remaining disputes to a subsequent hearing stage, which across agencies is singularly defined by its purpose, timing, and procedural characteristics.

Understanding adjudication as a staged process makes the APA’s regime coherent and offers new insights into the statute’s conceptual foundation. It clarifies that an adjudicatory “hearing” under the APA is formal, while amplifying principles that appropriately can be used to cabin hearings and effectuate Congress’s preference for agency over judicial resolution of administrative disputes. It provides a compelling explanation for the APA’s failure to establish minimum procedural requirements for informal adjudication. And once hearings are removed from this category, it emerges that informal adjudication may be better characterized as executive than quasi-judicial. Modern administrative law admits of this possibility, but the APA is blind to it because the statute was founded upon a conception of administrative action as purely quasi-legislative and quasi-judicial and fundamentally not executive. This Article thus identifies a serious, unacknowledged problem: the APA’s conceptual foundation has become antiquated.

Keywords: administrative law, administrative procedure act, APA, formal adjudication, hearings, informal adjudication, quasi-judicial, executive action, New Deal

JEL Classification: K23

Suggested Citation

Bremer, Emily S., The Rediscovered Stages of Agency Adjudication (February 4, 2021). Washington University Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3793949 or http://dx.doi.org/10.2139/ssrn.3793949

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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