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Wednesday, February 01, 2012

The Agency Class Action

I want to thank everyone again for giving me the opportunity to blog with you this past month.  Before I go, one last, shameless plug:  For a long time, those of us writing in complex litigation have been toying with ways to import lessons from administrative law to improve procedural fairness and equity in collective litigation.  See, e.g., Alexandra D. Lahav, The Law and Large Numbers: Preserving Adjudication in Complex Litigation, 59 Fla. L. Rev. 383 (2007); Richard Nagareda, Turning From Tort to Administration, 94 Mich. L. Rev. 899 (1996). 

In our latest article, The Agency Class Action, Michael Sant' Ambrogio and I turn the tables and ask: "What can agencies learn from complex litigation to improve administrative adjudication?" Here's the abstract:

The number of claims languishing on administrative dockets has become a new “crisis”—producing significant backlogs, arbitrary outcomes and new barriers to justice.  Coal miners, disabled employees, and wounded soldiers sit on endless waitlists to appeal the same kinds of administrative decisions that frequently result in reversal.  Refugees seeking asylum from the same country play a dangerous game of “roulette” before arbitrary decisionmakers.  Defrauded consumers and investors miss out on fair compensation, as agencies settle the same claims with wrongdoers without victim participation or meaningful judicial oversight.   

Reformers have called for new resources, more administrative law judges and improved attorney fee arrangements.  But surprisingly, commentators have largely ignored tools long used by courts to resolve common claims raised by large groups of people: class action and complex litigation procedures.  Almost no administrative law process allows groups to aggregate and resolve common claims for relief.  As a result, in a wide variety adjudicatory proceedings, administrative agencies routinely (1) waste resources on repetitive cases, (2) reach inconsistent decisions for the same kinds of claims, and (3) deny individuals access to the affordable representation that aggregate procedures otherwise promise.  Moreover, procedural and substantive hurdles—including exhaustion of administrative remedies and judicial deference to agency expertise—often prevent federal courts from providing class-wide relief to parties in agency adjudications.

We argue that agencies themselves should adopt aggregation procedures, like those under Rule 23 of the Federal Rules of Civil Procedure, to adjudicate common claims raised by large groups of people.  After surveying the current tools by which agencies could promote more efficiency, consistency and legal access—including rulemaking, stare decisis, attorneys fees and federal court class actions—we find agency class action rules more effectively resolve common disputes by: (1) efficiently creating ways to pool information about recurring problems and enjoin systemic harms; (2) achieving greater equality in outcomes than individual adjudication; and (3) securing legal and expert assistance at a critical stage in the process.  In this way, The Agency Class Action represents a new kind of decision-making for administrative agencies—a blend of adjudication and rulemaking for large groups of people who similarly depend upon the administrative state for relief.

Posted by Adam Zimmerman on February 1, 2012 at 02:03 PM | Permalink

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