Due Process and Mass Adjudication: Crisis and Reform
78 Pages Posted: 8 Jun 2021
Date Written: June 4, 2021
Goldberg v. Kelly and its progeny imposed a judicial model for decisionmaking on much of the administrative state. The linchpin of procedural due process was accuracy: Goldberg’s premise was that agencies could improve the accuracy of their decisionmaking by giving individuals the sort of procedural rights enjoyed in court. In the wake of the due process revolution, federal agencies now adjudicate more cases than all Article III courts combined, and state adjudicators handle millions of cases with court-like procedures in their administrative systems. Yet despite Goldberg’s premise, mass adjudication has struggled to achieve an adequate threshold of accuracy. In much of the administrative state, this struggle has deepened into an urgent crisis. The leading academic response argues for a turn to “internal administrative law” and management techniques, not external law, to improve the quality of agency adjudication. Many agencies in turn have responded with such quality assurance programs, but we know next to nothing about how such programs have evolved, how they function, and whether they work.
Our Article is the first to rigorously investigate the promise and pitfalls of quality assurance as a guarantor of accuracy in agency adjudication. We make three contributions. First, we use in-depth interviews with senior agency officials and a wide array of internal agency materials to document the evolving use of quality assurance at three federal agencies whose mass adjudication epitomizes Goldberg’s domain. This history documents years of fits and starts, as agencies tried to manage what is commonly referred to as a “quantity-quality” tradeoff. It also reveals deep tensions and ambiguities in what the agencies intend as the purpose of quality assurance.
Second, we provide the first rigorous test of quality assurance, the leading academic response to Goldberg’s limitations. We use a rich dataset, never before available to outside academics, of over 500,000 cases decided by the Board of Veterans’ Appeals (BVA) to craft a rigorous evaluation of a natural experiment created by its “Quality Review” program. Under this program, cases were randomly selected for review of draft decisions by an elite squadron of attorneys to correct substantive legal errors. BVA used this program ostensibly to reduce appeals to and remands from the courts reviewing its decisions. We show that the program failed on its own terms: Cases selected for Quality Review fared no better than cases that were not. BVA used the program not to vindicate Goldberg’s premise, but to mollify external oversight bodies, most notably Congress, with the appearance of accuracy.
Third, our historical and empirical evidence has substantial implications for major theoretical debates about “internal administrative law” and the emerging crisis in mass adjudication. We show that conventional scholarly accounts are in need of much refinement. Deficiencies in mass adjudication will not be fixed solely through external constitutional law, with courts imposing remedies from outside. Nor will they be fixed solely by internal administrative law. Goldberg’s original premise of decisional accuracy requires a hybrid of external intervention, stakeholder oversight, and internal agency management. We offer concrete policy prescriptions, based on a pilot one of us designed as BVA’s Chief of the Office for Quality Review, for how quality assurance might be re-envisioned to solve the looming crisis of decisional quality.
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