Policymaking by the Administrative Judiciary

72 Pages Posted: 11 Nov 2003

See all articles by Charles Koch

Charles Koch

College of William and Mary School of Law

Abstract

Administrative agency authority to evolve policy in the course of adjudication is well established. While the scope of that authority and the judicial role with respect to such questions commands considerable scholarly attention, the process for exercising that authority inside administrative judiciaries is largely neglected. The policymaking role of the administrative judges in particular has been insufficiently conceptualized and hence their role in that regard poorly understood, even by themselves. Administrative judges must apply policy in individual context. As the record builders and initial decisionmakers, the administrative judges launch the policy related issues. Even clear policy leaves them some discretion and agency policy, being ambiguous or rendered ambiguous by the individual case, may afford judges considerable range. Necessarily then policymaking by administrative judges creates a tension within the agency hierarchy. The agencies endeavor to maintain dominance over policy and constantly struggle to keep the administrative judges within the strict confines of its policy pronouncements. For this reason, it is the policy aspects of the hearing level decisions, more so than individual dispute resolution, that defines the relationship between the agency and the judges.

This article seeks to understand the policymaking aspect of administrative adjudications. It exposes the myth that adjudicative judges are not part of the policymaking process. It examines how they do contribute to that effort. And it suggests ways to incorporate them most effectively in the adjudicative policymaking process and thereby the overall administrative policymaking process. Some first level answers can be derived from the various studies and commentary on judicial law making. Yet, the hierarchical allocation of policymaking in administrative adjudications is fundamentally distinct. Thus, the article looks closely at the adjudicative policy development in terms of precedent (or consistency), the internal force of varies categories of rule, the nature of policy oriented factual development and finding, the adjudicative staff's role, and agency supervision of policy judgments. From this analysis of the classic adjudicative hierarchy, the article considers the special circumstances of adjudicative policymaking in "coordinate" systems: centralized panels and split function. It concludes that conscious attention to the judge's role and full utilization of them for policymaking will significantly improve many administrative systems.

Keywords: administrative law, policy making, law making, agency, administrative judges

JEL Classification: K1, K2, K4

Suggested Citation

Koch, Charles H., Policymaking by the Administrative Judiciary. Available at SSRN: https://ssrn.com/abstract=460520 or http://dx.doi.org/10.2139/ssrn.460520

Charles H. Koch (Contact Author)

College of William and Mary School of Law ( email )

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P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3835 (Phone)
757-221-3261 (Fax)

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