There is an ongoing crisis of confidence in American government. Accusations of incompetence and political self-dealing dominate news cycles as public institutions seek to combat—with varying degrees of success—the public health and economic consequences of a global pandemic. Highlighted in this struggle is the larger issue of the importance of integrity to the efficacy and legitimacy of administrative government. This is especially true for agency adjudication, as it is the form of agency action that most directly impacts individuals. Recusal—the process by which an adjudicator is removed, voluntarily or involuntarily, from a specific proceeding—is a time-honored way of protecting the agency adjudication. Yet the existing landscape of agency recusal standards exhibits gaps in coverage that potentially threaten the efficacy of, and public confidence in, that adjudication. This Article, which is based on a report for the Administrative Conference of the United States, is the first to identify the full range of recusal standards that impact agency adjudicators and to evaluate their effectiveness in light of recusal’s dual purposes of promoting fairness to litigants and public confidence in the integrity of the proceedings. It concludes that the best way to fill the ethical gap in agency adjudication is through agency-specific recusal regulations that seek to preserve both the reliability and effectiveness of agency adjudication.
Louis J. Virelli III,
An Ethical Gap in Agency Adjudication,
Buff. L. Rev.
Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol69/iss5/2