Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 62
Full-Text Articles in Law
Administrative Law Judges And The Erosion Of The Administrative State: Why Jarkesy May Be The Straw That Breaks The Camel's Back, Nicholas D'Addio
Administrative Law Judges And The Erosion Of The Administrative State: Why Jarkesy May Be The Straw That Breaks The Camel's Back, Nicholas D'Addio
Catholic University Law Review
The Trump-era unitary executive movement sought to expand presidential
power and shrink the influence of the administrative state through deregulation.
This movement ripples into the present moment, as Trump’s overhaul of the
federal judiciary installed a comprehensive system to delegitimize
administrative agency action— a system that is certain to endure. The
independence and role of administrative law judges (ALJs) has proven a key
target of the movement. Most recently, in the 2022 case of Jarkesy v. Securities
and Exchange Commission, the Fifth Circuit held that the dual-tiered for-cause
removal protections of SEC ALJs violated the Take Care Clause of Article …
An Attempt To Bring Modern Workplace Realities To The Social Security Disability Adjudication System, Robert E. Rains
An Attempt To Bring Modern Workplace Realities To The Social Security Disability Adjudication System, Robert E. Rains
Dickinson Law Review (2017-Present)
No abstract provided.
Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport
Resolving Alj Removal Protections Problem Following Lucia, Spencer Davenport
University of Michigan Journal of Law Reform
When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs …
Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland
Procedural Fairness In Antitrust Enforcement: The U.S. Perspective, Christopher S. Yoo, Hendrik M. Wendland
All Faculty Scholarship
Due process and fairness in enforcement procedures represent a critical aspect of the rule of law. Allowing greater participation by the parties and making enforcement procedures more transparent serve several functions, including better decisionmaking, greater respect for government, stronger economic growth, promotion of investment, limits corruption and politically motivated actions, regulation of bureaucratic ambition, and greater control of agency staff whose vision do not align with agency leadership or who are using an enforcement matter to advance their careers. That is why such distinguished actors as the International Competition Network (ICN), the Organization for Economic Cooperation and Development (OECD), the …
You’Re Fired! Why The Alj Multi-Track Dual Removal Provisions Violate The Constitution & How To Fix Them, Linda D. Jellum
You’Re Fired! Why The Alj Multi-Track Dual Removal Provisions Violate The Constitution & How To Fix Them, Linda D. Jellum
Articles
This Article explains why the for-cause removal provisions for ALJs are unconstitutional and offers three potential solutions to remedy this problem. Part I provides background information, which explains that the APA was a compromise of competing interests. Some wanted ALJs to be completely in-dependent from their agencies to further unbiased decision-making and inde-pendence, and others feared agencies would lose control over setting policy, should ALJs have such an independent function.Ultimately, Congress com-promised by including provisions to make the ALJs more independent, while also ensuring that agencies retained complete control to set policy.
As part of the independence piece of the …
The Death Of Judicial Independence In Turkey: A Lesson For Others, Edwin L. Felter Jr., Oyku Didem Aydin
The Death Of Judicial Independence In Turkey: A Lesson For Others, Edwin L. Felter Jr., Oyku Didem Aydin
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler
Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler
Scholarly Works
This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal. We first present our reported data on these matters, which …
Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler
Non-Alj Adjudicators In Federal Agencies: Status, Selection, Oversight, And Removal, Kent H. Barnett, Russell Wheeler
Georgia Law Review
This article republishes—in substantively similar form—our 2018 report to the Administrative Conference of the United States (ACUS) concerning federal agencies’ adjudicators who are not administrative law judges (ALJs). (We refer to these adjudicators as “non-ALJ Adjudicators” or “non-ALJs.”) As our data indicate, non-ALJs significantly outnumber ALJs. Yet non-ALJs are often overlooked and difficult to discuss as a class because of their disparate titles and characteristics. To obtain more information on non-ALJs, we surveyed agencies on non-ALJs’ hearings and, among other things, the characteristics concerning non-ALJs’ salaries, selection, oversight, and removal. We first present our reported data on these matters, which …
The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher
The Shadow Of Free Enterprise: The Unconstitutionality Of The Securities & Exchange Commission's Administrative Law Judges, Linda D. Jellum, Moses M. Tincher
Articles
Six years ago, Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), for the first time giving the Securities and Exchange Commission (SEC) the power to seek monetary penalties through its in-house adjudication. The SEC already had the power to seek such penalties in federal court. With the Dodd-Frank Act, the SEC’s enforcement division could now choose between an adjudication before an SEC Administrative Law Judge (ALJ) or a civil action before an Article III judge. With this new choice, litigants contended that the SEC realized a significant home-court advantage. For example, the Wall Street Journal …
Against Administrative Judges, Kent H. Barnett
Against Administrative Judges, Kent H. Barnett
Scholarly Works
The single largest cadre of federal adjudicators goes largely ignored by scholars, policymakers, courts, and even litigating parties. These Administrative Judges or “AJs,” often confused with well-known federal Administrative Law Judges or “ALJs,” operate by the thousands in numerous federal agencies. Yet unlike ALJs, the significantly more numerous AJs preside over less formal hearings and have no significant statutory protections to preserve their impartiality. The national press has recently called attention to the alleged unfairness of certain ALJ proceedings, and regulated parties have successfully enjoined agencies’ use of ALJs. While fixes are necessary for ALJ adjudication, any solution that ignores …
The "Hidden Judiciary": An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
The "Hidden Judiciary": An Empirical Examination Of Executive Branch Justice, Chris Guthrie, Jeffrey J. Rachlinski, Andrew J. Wistrich
Jeffrey J. Rachlinski
Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this Article, we demonstrate that these executive branch judges, like their counterparts in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.
Civil Justice Reform In Social Security Adjudications, Jeffrey S. Wolfe
Civil Justice Reform In Social Security Adjudications, Jeffrey S. Wolfe
Journal of the National Association of Administrative Law Judiciary
Part I of this Article explores the actions of the Social Security Administration over time, both as related directly to the role of the administrative law judge in the case management process and to the agency's management of the backlog crisis generally, examining the cultural environment of bureaucratic management that has, despite the passage of decades, failed to remedy a persistent animus between the agency and its cadre of administrative law judges to the public detriment. Part II next examines the core attributes of the managerial judge and contrasts this in Part III with the agency's handling of the backlog …
Statement Of The Association Of Administrative Law Judges, Inc., Officers And Board
Statement Of The Association Of Administrative Law Judges, Inc., Officers And Board
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Administrative Hearings: State Central Panels In The 1990s, Allen Hoberg
Administrative Hearings: State Central Panels In The 1990s, Allen Hoberg
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Hidden Executive Branch Judiciary: Colorado's Central Panel Experience - Lessons For The Feds, Edwin L. Felter Jr
The Hidden Executive Branch Judiciary: Colorado's Central Panel Experience - Lessons For The Feds, Edwin L. Felter Jr
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
The Central Hearing Agency: Theory And Implementation In Maryland, John W. Hardwicke
The Central Hearing Agency: Theory And Implementation In Maryland, John W. Hardwicke
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Judges Under Fire - Alj Independence At Issue, Debra Cassens Moss
Judges Under Fire - Alj Independence At Issue, Debra Cassens Moss
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Contempt Powers Of The Administrative Law Judge, Joyce Krutick Barlow
Contempt Powers Of The Administrative Law Judge, Joyce Krutick Barlow
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Administrative Law Judges: Past, Present And Future, John Paul Jones
Administrative Law Judges: Past, Present And Future, John Paul Jones
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Model Code Of Judicial Conduct For Federal Administrative Law Judges , National Conference Of Administrative Law Judges, Judicial Administration Division, American Bar Association
Model Code Of Judicial Conduct For Federal Administrative Law Judges , National Conference Of Administrative Law Judges, Judicial Administration Division, American Bar Association
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Editorial, David J. Agatstein
Editorial, David J. Agatstein
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Reno In 1981!, David J. Agatstein
Reno In 1981!, David J. Agatstein
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
A Model Code Of Judicial Conduct For State Administrative Law Judges - National Conference Of Administrative Law Judges - American Bar Association, National Conference Of Administrative Law Judges American Bar Association
A Model Code Of Judicial Conduct For State Administrative Law Judges - National Conference Of Administrative Law Judges - American Bar Association, National Conference Of Administrative Law Judges American Bar Association
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Administrative Law: Working Together For Professionalization - Administrative Law Judges, The Judiciary, And The Community , Elizabeth B. Lacy
Administrative Law: Working Together For Professionalization - Administrative Law Judges, The Judiciary, And The Community , Elizabeth B. Lacy
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Professionalism: A Call To Excellence, Gina L. Hale
Professionalism: A Call To Excellence, Gina L. Hale
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Evaluation Of Administrative Law Judges: Premises, Means, And Ends, Ann Marshall Young
Evaluation Of Administrative Law Judges: Premises, Means, And Ends, Ann Marshall Young
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Security Of Tenure Of Administrative Law Judges: How Much Can An Alj Say And Still Stay An Alj?, Allen Shoenberger
Security Of Tenure Of Administrative Law Judges: How Much Can An Alj Say And Still Stay An Alj?, Allen Shoenberger
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Public Perceptions Of Justice: Judicial Independence And Accountability , John L. Kane Jr
Public Perceptions Of Justice: Judicial Independence And Accountability , John L. Kane Jr
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Adapting The Central Panel System: A Study Of Seven States, Malcolm Rich
Adapting The Central Panel System: A Study Of Seven States, Malcolm Rich
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
New York's Elusive Administrative Law Judge, Monroe I. Katcher Ii
New York's Elusive Administrative Law Judge, Monroe I. Katcher Ii
Journal of the National Association of Administrative Law Judiciary
No abstract provided.