The Administrative Law Judiciary: Change, Challenge, and Choices

Abstract

Over the past 40 years, and concomitant with the enormous expansion of governmental function and regulatory reach, an administrative law judiciary has emerged to assist government agencies with the fact-finding and individual case application needs of their regulatory mission. The legislation, case law, and national conceptions of judicial function that shaped the evolution have worked to render that adjudicative corps less an instrument and aid for executive rulemaking and discretionary exercise and more a court-like forum for final determination of rights and obligations in disputed cases of benefit entitlement, regulatory observance, and legal compliance. Fortunately, the realities of administrative law judge (ALJ) functions have moved in this direction. The vast majority of ALJs, at least at the federal level, are now engaged in dealing with an explosion of benefit and enforcement cases well suited to trial-type resolution of disputes in which government is a contending party. The development, however, brings into question the status of ALJs, almost unique to the United States, as agency employees and as surrogates whose decisions are “correctable” at agency level rather than the final determinations of a “trial judiciary.” Accordingly, it appears that a long list of proposals are ripe for evaluation and implementation.