Under the U.S. Constitution, before the government may adversely affect liberty or property interests, the interest-holder is entitled to an administrative hearing or a trial. When fact-finding is transferred from the judicial branch by the legislative branch and is given to the executive branch, executive agencies are given the power to use tools that traditionally are wielded not by governors or presidents, but by judges. The result is an administrative fact-finding hearing, presided over by an administrative law judge (ALJ). This hearing uses someone who, on the one hand, is part of the executive branch, but on the other hand acts like a judge in the judicial branch. The executive-branch adjudicator tends to create the impression that because he or she is part of the executive branch of government, any decision rendered by the ALJ will be biased in favor of the executive branch, because the judge is not independent, and is part of the executive agency that brought the charges.
Applying principles of "procedural justice" examined first by Thibaut and Walker in the 1970s, and then by Lind and Tyler in the 1980s, this paper examines perceptions of fairness in ALJ adjudications. It uses results from field studies of participant perceptions of fairness in agency adjudication. This is a doctoral dissertation, supported by a grant from the National Science Foundation. The paper will report on the results of a national survey of litigants, defense lawyers, and ALJs, probing whether these stakeholders believe the hearings they participated in were fair.
Chris McNeil. "Perceptions of Fairness in Agency Adjudications: Applying Lind & Tyler's Theories of Procedural Justice to State Executive-Branch Adjudications" (2008)
Available at: http://works.bepress.com/cbmcneil/12/