Administrative Law Symposium

Research Roundtable on Due Process Deficits in Regulatory Agencies’ Enforcement and Adjudication Practices

In 2022, The Center for Growth and Opportunity, Pacific Legal Foundation’s Center for the Separation of Powers, and George Mason University’s Law & Economics Center put out a call for papers and hosted a research roundtable on due process deficits in regulatory agencies’ enforcement and adjudication practices. The research roundtable was held in October 2022, at the Scalia Law School and seven submissions will be published in this symposium.

This project came about because a constellation of distinct but interrelated due process deficits has arisen as the regulatory state has grown larger and gradually supplanted courts’ traditional role in resolving disputes. Among the most important of these deficits are lack of notice to affected persons, delay or denial of access to court, lack of impartial adjudicators, agency failure to respond promptly to allegations of wrongdoing, disproportionate and unfair penalties, and lack of democratic accountability. Many regulatory agencies employ practices that skirt the most basic due process protections. These deficits not only have adverse legal effects and raise serious Rule of Law concerns, they also often bring significant economic concerns from lack of predictability, inefficiencies associated with under-informed regulators, and inadequately reasoned or arbitrarily identified compliance costs.

The seven papers in this series address many of these issues with thorough analyses and practical solutions. Each paper has been peer reviewed through the Center for Growth and Opportunity’s review process as well as thorough discussion and focus during the October 2022 roundtable. The papers are being published as they are completed. See the full list below.

  1. An Alphabet Soup of Due Process Violations by Jim Dunstan
  2. Substantial Defects: Deference, Juries, and Agency Fact-Finding by John Kerkhoff and Oliver J. Dunford
  3. The Tension between Agency Authority and the Constitution by Leslie Corbly
  4. Regulatory Pluralism: An Empirical Analysis of Decision Making in Administrative Law by Daniel Epstein
  5. Why the Court Should Reexamine Administrative Law’s Chenery II Doctrine by Gary Lawson and Joseph Postell
CGO scholars and fellows frequently comment on a variety of topics for the popular press. The views expressed therein are those of the authors and do not necessarily reflect the views of the Center for Growth and Opportunity or the views of Utah State University.