Notice & Comment

Three Wrong Turns in Agency Adjudication: The APA at 75

Last week, Chris Walker noted that the George Mason Law Review is hosting a symposium to recognize the Administrative Procedure Act’s 75th anniversary. Like Chris, I’ve also prepared a short essay about agency adjudication.

My contribution to the symposium — entitled Three Wrong Turns in Agency Adjudication — explores why agency adjudication is more controversial than it needs to be. It also addresses recent reform efforts. Here is the abstract:

Agency adjudication is a longstanding but imperfect feature of U.S. law. In fact, the United States is still suffering the consequences of three wrongs turns in agency adjudication made between 1945 and 1947: the Supreme Court’s inclusion of careless language in Bowles v. Seminole Rock & Sand Co.; Congress’s failure to flesh out key aspects of the Administrative Procedure Act’s adjudication provisions; and the Supreme Court’s overly broad endorsement of retroactivity in the second SEC v. Chenery. Especially when combined, these three wrong turns have made agency adjudication more controversial than it needs to be.

This short Article examines these wrong turns and two efforts at course correction from 2019, namely, the Supreme Court’s decision in Kisor v. Wilkie and a pair of executive orders that touch on agency enforcement. These reforms have the potential to mitigate some of the harmful effects of the wrong turns from the 1940s, but they would not have been necessary had the Supreme Court and Congress made better decisions initially. This Article thus concludes by offering lessons from what went wrong so that history will not repeat itself.

This is the link to the SSRN version. Comments are welcome. And thanks George Mason Law Review for organizing.

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