Reckoning with Adjudication’s Exceptionalism Norm

by Emily S. Bremer

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Abstract

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter. The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization in the law. It argues that the exceptionalism norm overemphasizes specialization, at great cost. This Article urges a new regime designed to more properly balance the values of specialization and uniformity. The proposal contemplates that as in rulemaking, the project would entail an interbranch effort to protect fundamental rights and promote institutional integrity while preserving space for needed agency discretion.

Reckoning with Adjudication’s Exceptionalism Norm

by Emily S. Bremer

Click here for a PDF file of this article

Abstract

Unlike rulemaking and judicial review, administrative adjudication is governed by a norm of exceptionalism. Agencies rarely adjudicate according to the Administrative Procedure Act’s formal adjudication provisions, and the statute has little role in defining informal adjudication or specifying its minimum procedural requirements. Due process has almost nothing to say about the matter. The result is that there are few uniform, cross-cutting procedural requirements in adjudication, and most hearings are conducted using procedures tailored for individual agencies or programs. This Article explores the benefits and costs of adjudication’s exceptionalism norm, an analysis that implicates the familiar tension between uniformity and specialization in the law. It argues that the exceptionalism norm overemphasizes specialization, at great cost. This Article urges a new regime designed to more properly balance the values of specialization and uniformity. The proposal contemplates that as in rulemaking, the project would entail an interbranch effort to protect fundamental rights and promote institutional integrity while preserving space for needed agency discretion.