Introduction to Adjudications
Every new tribunal, erected for the decision
of facts, without the intervention of jury, . . .
is a step towards establishing . . . the most
oppressive of absolute governments.
Evolution of Adjudications
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What types of disputes were early courts (1400s)
concerned with?
What is at issue in many modern administrative
adjudications that is fundamentally different from
the cases in 1400?
 Why does this make juries less effective?
 When is this a problem in Article III trials?
What is the role of juries in civil law countries?
Defining an Adjudication
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Adjudications are the process used to make an
order, other than rulemaking
What are examples of adjudications?
 Why is your federal student loan application an
adjudication?
 What is the order?
 Other examples?
Purposes of Orders
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Allocate benefits
Stop unlawful activities
Set policy
 How can an adjudication set policy?
 How is this like common law precedent?
 What are the advantages and disadvantages of
setting policy in an adjudication or a trial?
APA Provisions
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Formal (APA) Adjudications under the US APA
 US - 554, et seq.
Louisiana Provisions
 LA - 955, et seq.
Formal (APA) v. Informal (Non-APA)
Adjudications
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What is the language in 554 that triggers a formal
adjudication?
What are the subsequent provisions this triggers?
Why do we call informal adjudications non-APA
adjudications?
Ex Parte Communications - formal
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Why are these forbidden in Article III trials?
Why are they less of a problem in agency proceedings?
 How is the relationship between a litigant and the
court different between a litigant and an agency?
 Why is knowledge by the judge of the issues and
parties treated differently from a trial?
Are the APA restrictions on ex parte communications like
those for Article III trials?
Requirements of Formal Adjudications
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No ex parte communications - 557(d)
 What is an ex parte communication?
 What is the loophole?
Separation of Functions
 How does this cure the loophole?
Right to present evidence and subpoena
witnesses
Generally like a trial
Administrative Cost and Formal
Adjudications
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Administrative cost is a key concept in adlaw
Administrative agencies carry out huge numbers
of adjudications
 What would it cost if each of these looked like a
trial?
 What sort of delays would you expect?
 What if FEMA used trials to decide on
compensation checks?
Costs of Formal Adjudications
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Monetary costs are high
Time costs are high
They reduce agency flexibility
Why might you want one for your client?
Why are administrative costs useful to lawyers?
Judicial Limitations on Formal
Adjudications
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Most of the circuits and the United States
Supreme Court are reticent to order formal
adjudications unless the language of the statute
clearly requires it.
Why is this?
What are the arguments for a formal adjudication?
If you want one, you have to convince the court
that congress intended for you to have one.
Types of Informal Adjudications
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Social security disability determinations
Federal student loans
Medicaid eligibility determinations
In general, all government legal determinations
based on specific facts that are not judicial
decisions are adjudications
Rules that apply generally, even if the class of
parties is very small, are not adjudications.
Notice
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What is notice?
Why is it required?
What has to be provided in the notice?
What can complicate notice?
 What about in immigration?
 Welfare benefits?
Burden of Proof
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What is the burden of proof in an administrative
proceeding?
 Why does it matter who is the proponent of the order?
What is the significance of the burden of proof standard?
Are there other standards in administrative proceedings?
 The United States Supreme Court has upheld a clear
and convincing standard in mental health
Rules of Evidence in Administrative
Proceedings (Formal and Informal)
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What is the purpose of the rules of evidence in
Article III trials?
 What is the underlying theory of the rules?
 How does this change when there is no jury?
Why would this be different in an inquisitorial
proceeding?
Does the APA set the standard of evidence?
 Do all agencies use the same standards?
Hearsay
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What is hearsay?
Why is it excluded in the rules of evidence, except
for the zillion exceptions?
Why would the hearsay rule not be as important in
an agency proceeding?
What was the Residuum Rule?
This has been replaced by the "substantial
evidence" standard used for all agency evidence
LA uses "sufficient evidence" - may not be the
same standard.
Licensing and Permitting
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Using lawyers as an example, what are the basic
legal requirements for licensing?
What are the enforcement advantages of requiring
a license as compared to having the agency look
for violations in an ongoing activity?
 Health food supplements v. drugs?
 Pit bull ordinances versus dangerous dog
laws?
Licensing under the APA
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How are the legal standards for initial licensing different
from a license review or revocation?
 Why?
How are the potential parties different for a law license
than for a TV station license?
 How does this change the adjudication?
What is the basic due process requirement for revoking a
license?
 When can it be done without this process?
 What process can be substituted?