The Exceptionalism Norm in Administrative Adjudication
by Emily S. Bremer
The standard narrative envisions administrative law as a quasiconstitutional field with the Administrative Procedure Act (APA) as its superstatute backbone. In rulemaking and judicial review, this narrative is compelling and has facilitated judicial and scholarly rejection of agency claims to “exceptionalism,” i.e., exception from uniform, cross-cutting administrative law principles. This Article argues that there is a significant omission from the standard narrative: adjudication. Here, Congress, the courts, agencies, and scholars have embraced the use of unique institutional structures and procedural rules tailored to suit the needs of individual agencies and regulatory programs. As a consequence, most adjudication is conducted outside of the APA, which has little role in defining “adjudication” or specifying its minimum procedures. In adjudication, this Article argues, exceptionalism is the norm. On the level of theory, this undermines administrative law’s standard narrative. More practically, although exceptionalism may benefit individual programs, it threatens system-wide harms—to transparency, fairness, and quality procedural design—that escape program-specific evaluation.
Revisiting Contempt of Congress
by E. Garrett West
Suppose that a private citizen or an executive branch official does something that the House or Senate considers contemptuous—say, refusing to respond to a congressional subpoena. May the House or Senate arrest her, try her for contempt, and detain her until she complies? This power is called the “inherent contempt power,” and conventional constitutional wisdom concedes that the House or Senate can exercise it unilaterally.
On Amplification: Extralegal Acts of Feminist Resistance in the #MeToo Era
by Shelley Cavalieri
The movement now referred to as #MeToo has revealed the degree to which misogyny remains a pervasive force in U.S. society. It has also highlighted something far more troubling for feminist legal scholars—the utter inadequacy of law to solve the ways that unconscious, sexist bias continues to infect public life in the twenty-first century. This Article argues that while legal interventions borne from second-wave feminism made substantial, important progress in addressing gender discrimination in the United States, law as currently constituted is frequently found to be an insufficient tool to combat unconscious bias based on gender. Instead, feminist reformers will need to adopt other methods to try to eradicate unconscious bias within the nation. Amplification, an extralegal strategy of feminist resistance, is one of these methods, offering women the opportunity to join together to lend credibility to one another’s experiences while seeking to overcome sexism as it now exists.
A Path to Protection: Collateral Crime Vacatur for Wisconsin’s Victims of Sex Trafficking
by Kelsey Mullins
Sex trafficking is a form of human trafficking in which a trafficker compels a victim to engage in commercial sex acts. Traffickers often control victims using physical violence, sexual abuse, psychological abuse, isolation, and by introducing victims to illegal drugs. Throughout the course of their victimization, many victims of sex trafficking experience such distress that they turn to drugs to cope or steal to meet their basic needs. Unfortunately, the trauma of trafficking is prolonged and exacerbated when victims are prosecuted for and convicted of crimes they committed as a direct result of trafficking. In addition to prostitution convictions, many victims of trafficking accrue criminal records for “collateral” offenses such as drug possession, theft, disorderly conduct, or weapons offenses. When victims of trafficking have criminal records, they encounter barriers to housing and employment, subjecting victims to lives of poverty, which increases their risk of being re-trafficked.
When Roles Collide: Deference, Due Process, and the Judicial Dilemma
by Amy Buchmeyer
In Tetra Tech EC v. DOR, the Wisconsin Supreme Court became the first court in the country to eliminate deference to agency interpretations of law on the grounds of procedural due process. The lead opinion found deference violated two constitutional principles: separation of powers and procedural due process. The case primarily emphasized the separation of powers violation. But both proponents and critics of agency deference reference separation of powers to support their position. Many deference doctrines, including federal Chevron deference, find primary support in separation of powers and the understanding that agencies wield legislative authority. Further adding to the confusion, courts do not always take a clear approach to separation of powers. Procedural due process, alternatively, deals with competing litigants in the courtroom. The judiciary owes litigants an impartial tribunal. But when a judge submits to one party’s interpretation of the law solely because of who that party is, the judge ceases to act impartially and violates both parties’ due process rights.