Headless Agency Adjudication at the Patent Office

From: The Regulatory Review



To borrow from Dan Farber and Anne Joseph O’Connell, Justice Kagan’s reference to administrative law judges (ALJs) indicates the “lost world” of agency adjudication—the formal adjudication set forth in the Administrative Procedure Act (APA) that then-Professor Kagan no doubt taught in her administrative law classes. Today, however, most formal-like agency adjudication occurs outside of the APA’s provisions for formal adjudication—not before ALJs but under the auspices of a variety of other administrative judges, hearing officers, and other agency personnel. This is the new world of agency adjudication.

This new world is extremely diverse in substance and procedure. It covers a variety of cases, such as disputes over public benefits, disputes between federal agencies and private parties, and even disputes between private parties. As the Administrative Conference of the United States has written, “some proceedings are highly adversarial; others are inquisitorial. Caseloads vary. Some have huge backlogs and long delays; others seem relatively current. The structures for internal appeal also vary.”

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