I was interested to see that a number of law professors filed comments in response to OMB’s request for information on “Reforming Regulatory Enforcement and Adjudication,” which notice you can find here. OMB expressed its concern that agency adjudications in a number of different ways lacked sufficient process, and invited people to weigh in. In particular, it said that “[t]he growth of administrative enforcement and adjudication over the last several decades has not always been accompanied by commensurate growth of protections to ensure just and reasonable process.” It mused about adding to the process by having agencies adopt parts of the Federal Rules of Evidence, applying res judicata to agency adjudications, or adopting Brady requirements, among other things.
It’s not exactly procedurally unprecedented, but if the White House is gearing up for an executive order on adjudications, it doesn’t, of course, have to take comment, let alone do an RFI. I looked quickly and saw a lot of individuals complaining about bureaucracy in a variety of colorful ways, but the U.S. Chamber’s ILR got involved, the National Federal of Independent Business asked that small businesses be penalized in adjudications only upon a showing of willful violation, so the institutional business organizations weighed in. So did the ABA’s Judicial Division, the ABA’s Government Affairs Office, and the Center for Progressive Reform.
I weighed in here. GW’s Dick Pierce weighed in here. Georgia’s Kent Barnett weighed in here. OSU’s Chris Walker blogged about the RFI here; Peter Shane wrote about it in the Atlantic. Former SEC/UVA/Mercatus’s Andrew Vollmer weighed in here. That’s a lot of law professors, and I’m sure I missed some.
The comment period wrapped up on March 16, so we’ll see if OMB goes forward with anything; I think that it is fair to say that a bunch of observers and institutions think that it might.
David Zaring is a Professor of Legal Studies & Business Ethics at the Wharton School.