Administrative Procedure and the Decline of the Trial

Abstract

This contribution to a special issue on “The History of the Trial” begins with the premise that the rise of administrative agencies is an essential part of that history. Since their emergence in the latter part of the nineteenth century, administrative agencies have assumed an increasingly important role in the legal regulation of economic and social activity, supplanting many of the functions previously performed by other governmental institutions, particularly the courts. To be sure, legal causes of action providing the basis for judicial trials have proliferated and there are more judges, courts, and cases than ever before, but this growth has been dwarfed by the expansion of administrative agencies, which decide cases and issues that would otherwise have been subject to trial in the courts.

Early on, most significant administrative adjudications involved relatively formal adversarial proceedings that closely resembled trials. But the expansion of the administrative state has been accompanied by a metamorphosis in the administrative procedures through which agencies make legal decisions. Alternative and less formal procedures that bear little resemblance to traditional trials have emerged as a pragmatic response to the realities of the modern administrative state. A variety of factors influenced this evolution, including the nature of the issues that agencies resolve, the kinds of information and input necessary to make those decisions, and the sheer quantity of decisions that need to be made. The judiciary has accommodated, if not encouraged, this procedural evolution by according agencies broad discretion over the choice of procedures and declining to impose significant constitutional or statutory constraints on that choice.

This article examines the evolution of administrative procedures with an eye toward the implications of this evolution for legal procedures generally. We discuss the growth of the administrative state and the factors fueling the evolution of administrative procedure. We then examine two basic trends that have shaped this evolution, the rise of rulemaking as a means of establishing policy without individualized adjudications and the emergence of informal, nonadversarial procedures in adjudications. The use of rulemaking and other informal procedures has many practical advantages that appear to justify the movement away from the formal procedures associated with trials. Still, this movement has not been without its costs. The fact that administrative procedures no longer promote some of the values associated with trials - particularly educational and participatory values - may contribute to the unease with which Americans view the administrative state. Nevertheless, the answer is not to reverse the trend towards more informal procedures in administrative law. Rather, it is to find ways to promote values served by trials, including education and participation, without sacrificing the efficiency of the administrative process.