Alternatives to Administrative Trial-Type Hearings for Resolving Complex Scientific, Economic, and Social Issues

Within the current wave of criticism directed at the federal administrative agencies, a traditional theme of administrative law is frequently echoed: agencies have allowed their proceedings to become over-judicialized, and ought to engage in more rule-making to avoid the slow, cumbersome, and repetitious process of case-by- case adjudication. As if to confirm the urgency of these calls for greater use of the rule-making power, examples occasionally surface which suggest that trial-type proceedings may collapse under their own weight and force some agencies to resort to rule-making if they are to accomplish anything at all. Thus, the Interstate Commerce Commission has announced that a massive rail-merger case has become so unmanageable that the hearing examiner’s initial decision must be issued in multiple volumes, and an experienced commentator has concluded that the Atomic Energy Commission’s duty to consider the environmental impact of nuclear reactors in trial-type hearings places AEC licensing boards “in an impossible position” and may well prove “undoable.” At the same time, however, those who may be adversely affected by agency rule-making action often prefer what they conceive to be the greater procedural safeguards of trial-type hearings, and usually can find support in Congress; indeed, a recent study concluded that, with very few exceptions, the major grants of rule-making authority made by Congress within the past decade have contained procedural requirements that go beyond the notice-and-comment practice prescribed for informal rule-making by the Administrative Procedure Act (AP A). Perhaps in recognition of these practical pressures, some commentators have urged that the distinction between adjudication and rule-making can impede analysis and that it may be useful in some areas to acknowledge hybrid forms of procedure incorporating various elements of both adjudication and rule-making, and other procedural techniques as well. Similarly, some of the current literature on environmental law contains references to “generic” and “ad hoc” or “particularized” proceedings, terms which seem designed to avoid the procedural implications of labeling a certain form of agency activity as either adjudication or rule-making. Since the problems and uncertainties surrounding the administrative uses of trial-type proceedings seem substantial, it may be helpful to take a fresh look at both the kinds of issues that seem to be causing the most difficulties in the administrative process and the attributes of the trial-type hearing in comparison to other forms of decision-making.