Administrative Adjudicators' Extrajudicial Statements

32 Pages Posted: 7 Sep 2021

Date Written: September 4, 2021

Abstract

The appropriate scope of federal and state judges’ extrajudicial speech has long been the subject of vibrant debate; administrative adjudicators’ extrajudicial speech has received far less attention. To the extent that it has, commentators have concluded that the ethical restraints on administrative adjudicators should largely resemble those constraining their brethren situated in courts. Commentators also seem to have assumed that administrative adjudicators themselves would judge their own statements in light of general codes of judicial conduct (often developed by professional groups), much like members of the federal and state judiciaries do.

But during the Trump Administration, the Department of Justice’s Executive Office of Administrative Review instituted a policy that broadly prohibited immigration judges from publicly sharing their views. To effectual this policy, immigration judges were made subject to a preclearance review regime, requiring them to obtain permission from agency supervisors before they could speak on issues regarding immigration.

This paper presents a comparative analysis of agencies and courts along seven dimensions relevant to the propriety of extrajudicial speech: (1) disqualification standards and costs of recusal, (2) nature of the interests adjudicated, (3) nature and scope of review to which adjudicators’ determinations are subject, (4) relationship between adjudicators and agency officials, (5) adjudicators’ obligations of institutional loyalty, (6) separation of powers concerns, and (7) degree of reliance upon litigants’ and the public’s acceptance of the judgments rendered in the adjudication. From this analysis, the paper draws two conclusions.

First, the ethical norms of administrative adjudicator extrajudicial speech should not dramatically differ from those applicable to their brethren serving on courts. The differences between the agency and judicial contexts cut in different ways. Thus, on balance the differing contexts do not suggest the need for significantly different norms.

Second, while a regime that largely relies on judges selecting their own philosophies regarding extrajudicial speech within a broad range of choice is tolerable in federal and state judicial systems, agencies should be able to take a more pro-active role. Agencies should be allowed to place less reliance on individual adjudicators’ choices and establish a framework that accords administrative adjudicators a more limited range of discretion than court systems, particularly the federal court system, typically confer upon judges.

Keywords: extrajudicial speech, administrative law judges, First Amendment, judicial ethics

Suggested Citation

Bell, Bernard W., Administrative Adjudicators' Extrajudicial Statements (September 4, 2021). Notre Dame Journal of Law, Ethics and Public Policy, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3917610 or http://dx.doi.org/10.2139/ssrn.3917610

Bernard W. Bell (Contact Author)

Rutgers Law School - Newark ( email )

Newark, NJ
United States
973-353-5464 (Phone)
973-353-1445 (Fax)

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