In two prior posts (here and here), I have been discussing the ideas in my new paper, “Classical Liberal Administrative Law in a Progressive World.” This post continues the series by discussing how agency adjudication should be changed.
Under current arrangements, agencies often adjudicate cases that really should be adjudicated in Article III courts. Most of the time, these adjudications are called formal adjudications since they are accompanied by a formal hearing that provides significant procedural protections. The initial decision is made by an administrative law judge (ALJ) but, if the agency does not agree with the ALJ’s decision, the agency can appeal that decision to itself and reverse the ALJ. Thus, agency adjudications are ultimately controlled by the agency.
Editor’s note: This is a modified version of Michael Greve’s comments he delivered on a panel called “Public Interest Litigation in the Modern Era” at the Federalist Society’s 2017 Annual Lawyers Convention in Washington, D.C.
I used to be in the public interest litigation business, back in the premodern era. My comments here briefly summarize an outsider’s observations on what I think has changed in public interest law and what its role should be in the future of conservative-libertarian politics.