Notice & Comment

Gelbach and Marcus on Judicial “Problem-Oriented Oversight” of Mass Agency Adjudication (AdLaw Bridge Series)

Last year the Administrative Conference of the United States adopted a recommendation for special procedural rules for social security litigation in the federal district court, based on an incredible empirical study on by Jonah Gelbach and David Marcus. (All of the ACUS project documents are collected here.) The study focused on, among other things, judicial remand to the agency and its effects on agency adjudication.

Gelbach and Marcus just posted a draft of a new paper, entitled Rethinking Judicial Review of High Volume Agency Adjudication, that builds on their report and is forthcoming in the Texas Law Review next year. Here’s a description of the paper from the abstract:

Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief the sort of consideration that an agency buckling under the strain of enormous caseloads cannot. Judicial review thus seems to help legitimize systems of high volume agency adjudication. Even so, influential studies rooted in the gritty realities of this decision-making have concluded that the costs of judicial review outweigh whatever benefits the process creates.

We argue that the scholarship of high volume agency adjudication has overlooked a critical function that judicial review plays. The large numbers of cases that disability benefits claimants, immigrants, and others file in Article III courts enable federal judges to engage in what we call “problem-oriented oversight.” These judges do not just correct errors made in individual cases or forge legally binding precedent. They also can and do identify entrenched problems of policy administration that afflict agency adjudication. By pressuring agencies to address these problems, Article III courts can help agencies make across-the-board improvements in how they handle their dockets. Problem-oriented oversight significantly strengthens the case for Article III review of high volume agency adjudication.

This Article describes and defends problem-oriented oversight through judicial review. We also propose simple approaches to analyzing data from agency appeals that Article III courts can use to improve the oversight they offer. Our argument comes out of a several-year study of social security disability benefits adjudication that we conducted on behalf of the Administrative Conference of the United States. The research for this study gave us rare insight into the day-to-day operations of an agency struggling to adjudicate huge numbers of cases quickly, and a court system attempting to help this agency improve.

This is such an important and well-executed paper, and its application extends far beyond the Social Security Administration to other types of high-volume agency adjudication.

For what it’s worth, I’ve spent a fair amount of time thinking about the potential systemic effect of judicial remand on agency adjudication in the context of immigration (here and here) and tax (here). Drawing on Emily Hammond’s terrific work on court-agency dialogue in the rulemaking context and based on the tools I found that courts use when remanding immigration cases to the agency, I put together a toolbox for enhancing court-agency dialogue on remand:


Some of what Hammond and I frame in terms of court-agency dialogue strikes me as very similar to what Gelbach and Marcus call “problem-oriented oversight.” In subsequent work, for instance, I’ve explored how remand and dialogue-enhancing tools may help courts have a systemic effect on agency adjudication. Here’s one snippet (p. 95):

[I]n the immigration adjudication context it is well documented that similarly situated immigrants are not necessarily treated similarly and that there are great disparities in outcomes that further agency and judicial review do not presently correct. And perhaps because many immigrants do not have legal representation, their otherwise meritorious claims of agency error are never appealed within the agency, much less in court. As Professor Hoffer and I have more fully explained elsewhere, remand and court–agency dialogue can help address these systemic problems by leading to improved consistency and quality of determinations not just in cases that eventually reach the courts but, more importantly, in the vast majority of cases that are never appealed

I have a follow-up paper in the works that looks at how the Board of Immigration Appeals responds to judicial remand (based on FOIA’d agency decisions on remand) to better assess the extent of the court-agency dialogue on remand. But all of my work is based on small datasets (and a fair amount of intuition).

The Gelbach and Marcus study and follow-up Texas Law Review article, by contrast, provide a much more rigorous and richer empirical analysis of the role of judicial remand in addressing systemic problems in mass agency adjudication. Definitely go give the article a read here.


This post is part of the Administrative Law Bridge Series, which highlights terrific scholarship in administrative law and regulation to help bridge the gap between theory and practice in the regulatory state. The Series is further explained here, and all posts in the Series can be found here.

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