THE FALSE PREMISE OF STATE ADMINISTRATIVE ADJUDICATION

As state courts struggle to provide services to high numbers of unrepresented litigants, some access to justice scholars have suggested expanding the availability of administrative hearings for certain matters. Administrative adjudication is portrayed as a less adversarial forum for unrepresented parties. But we actually know very little about the immense variety of structures that make up state administrative adjudication or how unrepresented parties fare in these forums. Nor do we know much about the role that nonlawyer representatives can play in these forums. This Article explores the range of structural and procedural variations between and within states to provide a rough framework for approaching thoughtful study of particular features of administrative adjudication that impact access to justice. This Article then enhances that framework with responses to an original survey of state administrative law judges regarding their perceptions of how well agency adjudication meets access-to-justice goals and where there can be improvement. Through this analysis, certain structural and procedural features in state administrative adjudication emerge as best practices for states to increase access to justice within their administrative tribunals, including a code of ethics that supports an engaged role for ALJs, centralized procedures, and increased roles for nonlawyer representation. This Article's empirical findings raise profound questions about the role of administrative adjudication in an overall account of access-to-justice innovations. Although administrative adjudication is designed to be user-friendly and accessible for unrepresented people, many administrative law judges say there is not enough legal representation in their hearing rooms. Given this finding, the Article explores the false premise of administrative adjudication's accessibility, adding to literature about the value of legal representation and expanded roles for nonlawyer representation. A deeper understanding of the effects of structural choices between states also offers crucial guidance for federal policymakers in light of recent Supreme Court opinions threatening federal administrative law judge independence.