Reckoning with adjudication's exceptionalism norm

• Published in: Duke law journal 2020-05, Vol.69 (8), p.1749-1805
• Main Author: Bremer, Emily S
• Format: Article
• Language: English
• Subjects: Administrative law; Analysis; Due process of law; Exceptionalism (Political philosophy); Judicial review; Judicial review of administrative acts; Laws, regulations and rules; Remedies (Law); Trial and arbitral proceedings
• ISSN: 0012-7086; 1939-9111

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.