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 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 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 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 Formal (APA) Adjudications under the US APA US - 554, et seq. Louisiana Provisions LA - 955, et seq.

Formal (APA) v. Informal (Non-APA) Adjudications 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 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 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 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 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 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 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 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 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) 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 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 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 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?