Over the last year, Melissa Wasserman, Matt Wiener, and I have been studying the role of precedential decision making in federal agency adjudication for a project commissioned by the Administrative Conference of the United States (ACUS). As part of the study, we interviewed adjudicators and other officials in twenty agency adjudication systems.

We just posted to SSRN a draft of our report here. And here is the SSRN abstract:

Over fifty years ago, the Judicial Conference of the United States recommended that the federal courts of appeals respond to their expanding caseload by “publish[ing]” only decisions “which are of general precedential value.” The federal judiciary has since established a clear, stable, and likely perdurable set of rules governing the distinction between precedential (sometimes called “published”) and non-precedential (sometimes called “unpublished”) decisions in the courts of appeals. After an intense debate accompanied by significant academic commentary, the judiciary amended the Federal Rules of Appellate Procedure in 2006 to address the precedential/non-precedential distinction.

The federal administrative judiciary, by contrast, has failed to reckon with many issues surrounding the distinction between precedential and non-precedential decisions. Most agencies lack formal procedural rules that address the subject. That is true even of agencies that explicitly distinguish between the binding effect of precedential and non-precedential decisions. Some agencies appear to have given the issue scant, if any, consideration. Academic attention to the subject has been still more limited, despite the recent resurgence of scholarship on agency adjudication.

Last year, the Administrative Conference of the United States (ACUS) responded to this situation by initiating a new study entitled Precedential Decision Making in Agency Adjudication. The study “seeks to identify best practices on the use of precedential decisions in agency adjudication” by addressing such questions as “when agencies should issue precedential decisions,” “according to what criteria,” and by what procedures; how they designate precedential decisions; and how they should communicate them, both internally and to the public. To address the issues ACUS has identified, we reviewed the rules, policies, and practices at twenty adjudication systems, including the federal government’s highest volume adjudication systems. We then conducted interviews with various agency officials at each adjudication system.

Our various findings and recommendations are set forth in this Report. Two board conclusions are worth noting at the outset. The first is that ACUS cannot offer any definitive answer to the question “when” any given agency should use precedential decision making. There are too many disparate considerations to say for sure, especially in the high-volume adjudication programs. But ACUS can and should identify for agencies the (sometimes competing) objectives that a system of precedential decision making can serve. Attention to these objectives may well guide agencies in deciding whether to use precedential decisions and, if they do, how.

Our second main conclusion is that ACUS should recommend that agencies with precedential decision-making systems follow certain best—and, in a few cases, obligatory—practices to comport with administrative law’s norms of regularity, consistency, and transparency. They include promulgating publicly available rules of procedure that specify the criteria for designating decisions as precedential and the procedures by which agencies make these designations. Whereas the federal courts have generally done that, most agencies have not. Other best practices include identifying techniques to improve the dissemination of decisions internally (to other adjudicators, policymakers, enforcement staff, and others) and externally (to regulatory beneficiaries, regulated firms, and the public more generally).

The stakes here are high. The vast majority of federal adjudications today take place not in federal courthouses but in agency hearing rooms. More than 12,000 agency adjudicators across the federal administrative judiciary collectively issue millions of decisions per year on subjects ranging from Social Security and veterans benefits to immigration and patent rights. The effective use of precedential decisions in these adjudication systems can advance the core aims of agency adjudication, such as policymaking, consistency, predictability, efficiency, and the appearance of justice. We hope the findings and recommendations in this Report encourage that further scholarly and real-world attention.

The final report will be published by the end of the year, so comments are definitely welcome! The current draft is available here.