The "Hidden Judiciary": An Empirical Examination of Executive Branch Justice

Article excerpt

ABSTRACT

Administrative law judges attract little scholarly attention, yet they decide a large fraction of all civil disputes. In this" Article, we demonstrate that these executive branch judges', like their counterparts" in the judicial branch, tend to make predominantly intuitive rather than predominantly deliberative decisions. This finding sheds" new light on executive branch justice by suggesting that judicial intuition, not judicial independence, is the most significant challenge facing these important judicial officers.

TABLE OF CONTENTS

Introduction
  I. Intuitive-Override Model of Judging
 II. Intuition and Deliberation in Administrative Law Judges
     A. Expertise
     B. Accountability
     C. Feedback
     D. Summary
III. Studying the Administrative Law Judge
     A. Methods
     B. Results: Cognitive Reflection
        1. Cognitive Reflection Test
        2. CRT and ALJs
     C. Results: Judicial Decision Making
        1. Anchoring
        2. Framing and Fairness
        3. Conjunction
        4. Hindsight/Outcome Bias
        5. Disregarding
        6. Egocentric Bias
     D. Summary
Conclusion
Appendix A: Materials Used at the New York City Conference.
Appendix B: Materials Used at the National Conference

INTRODUCTION

Administrative law judges (ALJs) toil in the shadows of the civil justice system. They work for the executive branches of state and federal governments, usually embedded in specialized agencies. Located outside the courtrooms in which generalist judges preside, they comprise a "hidden judiciary." (1)

To citizens, however, the 14,100 ALJs (2) are anything but hidden. They "'adjudicate massive numbers of individual disputes, far exceeding the number resolved by courts." (3) They handle matters in many areas of concern to citizens and society, including "disability, retirement, and other income security entitlements; consumer, workplace, and environmental safety; labor relations and civil rights violations; and regulatory programs in industry, commerce, communications, banking, and transportation." (4) At the federal level, ALJs conduct at least nine times as many trials as federal judges. (5) In short, ALJs are the "face of justice" for most American citizens. (6)

The prevalence of administrative judging exposes a great irony concerning ongoing debates about judicial specialization. Scholars, pundits, and politicians periodically call for greater specialization among judges] typically motivated by concerns that generalist judges simply cannot master the many complex areas of law and fact involved in modern litigation. Although the most visible courts are composed of generalist judges, a surprisingly large percentage of disputes are adjudicated by specialist judges. The quiet delegation of judicial authority to administrative tribunals is a long-term trend that has arisen more out of necessity than out of a careful assessment of the benefits and costs of judicial specialization. The wisdom of this trend has received little serious consideration or empirical study. Using well-established psychological research methods, we seek to begin to fill that gap in this Article.

Based on previous research involving generalist judges--federal district judges, state court judges, and federal magistrate judges--we have developed a model of judicial decisionmaking that explains how even well-qualified, experienced, and well-intentioned judges can make erroneous decisions. As we discuss in Part I, we have found that generalist judges appear to rely too heavily on intuition, rather than deliberation, when making judgments. (8) We raise the theoretical possibility in Part II that administrative law judges--who tend to have greater subject-matter expertise and face more frequent decisionmaking oversight--might make better decisions than generalist judges. Part III then describes our empirical study of ALJ decisionmaking. …