After decades of deregulation, the United States seems to be entering a period of re-regulation, regulation to prevent harm that many activities might cause and also to create positive external benefits that those activities could yield, but might not without incentives. Most regulatory programs in the United States provide a blend of measures designed to create these positive external benefits, promote good practices in the industry, prevent harms, and provide those harmed with remedies. At a time in which we contemplate new ways to regulate to deal with the crises of the day and prevent the crises of tomorrow, this Article seeks to explore one piece of the solution, a piece not usually thought of as regulatory: adjudication. Adjudication is often part of a broader regulatory web and is used both to deter harmful behavior and to remedy harmful behavior engaged in. And it is used in a variety of contexts.
To explore how we might construct federal agencies with greater adjudicatory power, I will use the regulation of equal employment opportunity as a case study. This Article analyzes the limits Article III may place on the structure of adjudicating agencies and ways those limits might be overcome. It then explains the weaknesses of the current system to enforce the antidiscrimination laws and outlines a proposal for what an adjudicative agency designed to maximize the benefits from an agency perspective might look like.
McCormick, Marcia L., Federal Regulation and the Problem of Adjudication (2011). St. Louis University Law Journal, Vol. 56, No. 39, 2011.