Document Type

Working Paper

Publication Date

2010

Keywords

Enforcement, Title VII, Separation of Powers, Legislative Courts, Adr, Agencies, Administrative Law, Adjudication, Discrimination, Courts

Abstract

Calls for increased regulation are flying fast and furious these days. We use regulation in the United States to prevent harm that various kinds of 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 regulatory solution: adjudication. Adjudication 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 agencies with greater adjudicatory power, I will use the regulation of equal employment opportunity as a case study. This article explains the weaknesses of the current system to enforce the anti-discrimination laws and outlines a proposal for what an adjudicative agency designed to maximize the benefits from an agency perspective would look like. The paper goes on to analyze the limits article III may place on the structure of adjudicating agencies and ways those limits might be overcome.

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