Friday, November 8, 2019
Adam Zimmerman (Loyola LA) has posted Surges and Delays in Mass Adjudication to SSRN.
Federal courts and agencies have both transformed themselves in response to new surges of claims in mass adjudication. But each system has done so in different ways. Courts frequently devise new case management techniques to appoint magistrate judges and organize private lawyers, facilitate the exchange of information, and collectively resolve disputes. By contrast, federal agencies often rely on centralized programs—using new rules, guidance, staffing, and most recently, artificial intelligence to address unpredictable surges and chronic delays.
But new experiments in agencies and courts suggest they do not have to pursue one approach at the expense of the other. To that end, some administrative judges have embraced novel case handling techniques, employing special masters and aggregate procedures. Courts have also used policy guidance and data analysis. These experiments suggest courts and agencies can learn and borrow from each other’s experiences.
How much each does so raises larger questions about adjudicative power. As federal courts have embraced informal case handling, they also have acquired more power to respond to new problems. By contrast, centralized plans often subordinate administrative judges to others in the policymaking wings of agencies and the halls of Congress. These trends may reflect differences between independent Article III courts and administrative judges who are reviewed by officers responsible for formulating policy. But combining approaches actually may strengthen how agencies make policy and the judiciary’s adherence to the rule of law—allowing agencies to flexibly adapt to new problems, while offering courts opportunities to adopt coherent and informed strategies in mass adjudication.