Students of the American federal administrative legal process have long debated the question of whether those persons charged with the responsibility for developing and conducting the formal hearing process and for making "initial decisions" in agency adjudication should act more like judges or more like administrators. Advocates of the judicial model of behavior seek to inject into the administrative process certain values inherent and traditional in Anglo-American courts. These values particularly, although not exclusively, include the protection of the personal, property and procedural rights of private citizens which have been developed by judges acting in their traditional capacities as makers of common law and interpreters of the federal constitution and statutory law. They include a suspicion of activity of governmental officials acting within broad grants of discretionary authority and a belief that an adversarial dispute settlement process is more rational and more resistant to personal bias and self-interest. Conversely, the advocates of the administrative model of behavior are primarily concerned with the social rather than the individual perspective. According to their value system, effective implementation of the programs of government must come first and all administrative functions (including adjudication) must therefore conform to whatever organizational or managerial requirements are necessary for progress toward politically defined goals. To sum up the differences in a rather simplistic but nonetheless realistic way, the judicialists emphasize procedure and "fair process," while administrationists emphasize the policy itself and the institutional nature of decision making as a function of organization. This essay asks three questions. First, has public policy, as expressed through statutes and administrative regulation, Civil Service Commission personnel administration policies, and articulated positions of professional interest groups, shaped the occupation of federal hearing examiner according to a specific model of behavior, to wit: the judicial model, the administrative model, or some combination of the two? Second, how important is the federal hearing examiner in the policymaking process? Third, assuming that we find a specific behavioral model to be dominant and also that we find hearing examiners to be important in policy formulation, what implications do these findings have for the nature, substance and process of administrative policy formulations?
Gerald M. Pops,
The Judicialization of Federal Administrative Law Judges: Implications for Policymaking,
W. Va. L. Rev.
Available at: https://researchrepository.wvu.edu/wvlr/vol81/iss2/2