Torquemada Meets Kafka: The Misapplication of the Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings

In the Columbia Law Review, Vol. 97, No. 5, 1997.

Posted: 4 Nov 1998

See all articles by Jon C. Dubin

Jon C. Dubin

Rutgers University School of Law

Date Written: September 1997

Abstract

A new development in administrative law threatens to undermine the judicial review rights of benefactory agency claimants, including thousands of disabled and elderly claimants of the Social Security Administration (SSA). In the past fours years, virtually every court of appeals has significantly limited SSA claimants' judicial review rights by refusing to consider issues asserted in court that have not been specifically raised in the previous inquisitorial SSA proceedings. This Article argues that the courts have heedlessly adapted this formal "issue exhaustion" doctrine to informal inquisitorial benefactory agency proceedings. None of the recognized prudential justifications for administrative exhaustion is adequately served in this context. In additions, the agency fails to provided adequate notice and the meaningful opportunity to claimants to raise and preserve issues and arguments in the "mass-justice" oriented administrative proceedings, in contravention of applicable equitable and procedural due process principles. the Article concludes that issue exhaustion is doctrinally and functionally incompatible with the SSA's inquisitorial model and operating reality and it urges the courts to reject the doctrine's application to SSA proceedings.

Suggested Citation

Dubin, Jon C., Torquemada Meets Kafka: The Misapplication of the Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings (September 1997). In the Columbia Law Review, Vol. 97, No. 5, 1997., Available at SSRN: https://ssrn.com/abstract=138834

Jon C. Dubin (Contact Author)

Rutgers University School of Law ( email )

Newark, NJ
United States
973-353-3186 (Phone)
973-353-3397 (Fax)

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