Originally uploaded at SSRN.

Abstract

In his prominent 1975 law-review article, “Some Kind of Hearing,” Second Circuit Judge Henry Friendly explored how courts (and agencies) should respond when the Due Process Clause required, in the Supreme Court’s exceedingly vague words, “some kind of hearing.” That phrase led to the familiar (if unhelpful) Mathews v. Eldridge balancing test, in which courts weigh three factors to determine how much process or formality is due. But the Supreme Court has never applied Mathews to another, often ignored facet of due process—the requirement for impartial adjudicators. As it turns out, Congress and agencies have broad discretion to fashion not only “some kind of hearing” but also some kind of hearing officer.

Scholars, Congress, and even federal agencies have largely ignored so-called “informal” agency hearings and the hearing officers who preside over them, despite their large number and significance. Unlike well-known administrative law judges, the lack of uniform treatment of, and data on, these federal hearing officers renders it difficult to monitor, compare, and improve the systemic design and fairness of informal hearings. To understand this “hidden judiciary” better, this article first reports, based on rare access to agencies, the most comprehensive empirical data assembled on those adjudicators’ independence. The data confirm the significant variety of federal hearing officers and the lack of uniform impartiality protections. To improve data collection, transparency, and salience of these hearing officers, this article proposes a disclosure framework—appropriated from consumer contexts—to detect, compare, and improve prophylaxes to protect hearing officers from improper agency influence. Ongoing disclosure of these adjudicators’ varied characteristics would prove useful to different constituencies by providing salient and comparable information, incentivizing agencies to provide optimal protections, and permitting Congress to intervene when particular agencies fail to do so or to consider more comprehensive reforms.

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