When an agency decides your case, what kind of process do you get?

Sometimes it’s a full trial-type hearing with witnesses, cross-examination, an independent decisionmaker, and a written opinion. Other times it’s a paper review and a short explanation.

In this episode, we map the adjudication spectrum under the Administrative Procedure Act (APA) — from “straight to your room” to a full family meeting.

What We Cover

• The difference between formal and informal adjudication
• The “magic words” that trigger full procedural protections: “on the record after opportunity for agency hearing”
• Why most agency decisions — roughly 90% or more — are informal
• What formal adjudication actually includes:
  • Notice
  • Right to counsel
  • Presentation of evidence
  • Cross-examination
  • Decision based exclusively on the record
  • Administrative Law Judge (ALJ)
• Why the APA says almost nothing about informal adjudication
• The “black hole” of informal process
• How due process, organic statutes, and agency regulations fill the gap
• Why courts generally cannot impose extra procedures beyond what the APA requires (Vermont Yankee)
• The massive volume problem: millions of decisions, only about 2,000 ALJs
• The justice gap created by delay and procedural filtering

Key Cases

• United States v. Florida East Coast Railway A statute that says “hearing” is not enough. Without the magic words, you don’t get formal adjudication.
• Vermont Yankee Nuclear Power Corp. v. NRDC Courts cannot add procedural requirements beyond those required by statute.

Real-World Examples

• Passport applications
• Social Security disability determinations
• Immigration interviews
• Student loan discharge decisions
• Borrower defense claims
• Public Service Loan Forgiveness

The same APA framework governs all of them.

Why This Matters

Your rights depend on where you fall on the spectrum — and you don’t get to choose.

Formal hearings are expensive and slow. Informal decisions are fast but thin. The system is built around tradeoffs: speed versus accuracy, efficiency versus fairness.

For many people, the informal stage filters out their claim before they ever reach a hearing. The structure of the system — not just the merits of the case — often determines the outcome.

This episode introduces one of the most important structural distinctions in administrative law: the difference between rulemaking and adjudication. Agencies don’t just enforce law — they also create policy. Sometimes they do it prospectively through general rules. Other times they do it case-by-case while deciding what happens to a specific party. That choice affects procedure, fairness expectations, and how quickly entire industries can change.

The Core Distinction

Rulemaking

• Forward-looking
• General applicability
• Sets standards before conduct happens
• Typically uses notice-and-comment procedures

Adjudication

• Backward-looking (or present-focused)
• Applies to specific parties and facts
• Determines liability, rights, or obligations in individual cases
• Procedural protections vary widely

Why This Distinction Exists

Government can’t realistically give individualized hearings before adopting rules that affect millions of people. But when the government is deciding what happens to a specific person or company, due process concerns become much stronger.

Constitutional Foundation

Londoner v. Denver (1908)

• Individualized determinations → hearing required

Bi-Metallic Investment Co. v. State Board of Equalization (1915)

• General rules affecting many people → no individual hearing required

These cases still structure how courts think about procedural rights today.

The Gray Area: Agencies Can Make Policy Through Adjudication

Under Supreme Court precedent (Chenery), agencies can choose whether to announce policy through rulemaking or through individual cases.

That means agencies can:

• Announce a new standard
• Apply it in the same case
• Effectively change national policy overnight

Real-World Example: Browning-Ferris (NLRB, 2015)

The NLRB expanded the definition of “joint employer” through a single adjudication.

Why it mattered:

• Affected staffing agencies, franchises, contractors, and supply chains
• Triggered years of litigation, rulemaking reversals, and political conflict
• Shows how one case can reshape an entire sector

Why This Matters Outside Law School

This structure affects:

• Labor rights
• Environmental regulation
• Data security expectations
• Financial regulation
• Healthcare compliance
• Licensing and professional discipline

Often, regulated parties don’t get a clean rulebook. They piece together standards from enforcement actions.

Key Takeaway

Agencies exercise two fundamentally different kinds of power:

1. Setting general rules for the future
2. Deciding what happens to specific parties

Which path they choose determines procedure, fairness expectations, and how predictable regulation feels.

Coming Next

Next episode: The spectrum of adjudication procedures — from trial-like hearings to simple denial letters — and why the same statute can produce radically different levels of process.

In the season finale, Gwen and Marc turn to Corner Post v. Board of Governors, a decision that reshapes when federal regulations can be challenged—and potentially destabilizes decades of settled law. They open with a property-law analogy, explaining the doctrine of “coming to the nuisance” and why legal systems protect settled expectations and reliance.

They then explain how statutes of limitations have traditionally functioned in administrative law: challenges to regulations had to be brought within six years of issuance. Corner Post upends that understanding by tying accrual to standing, allowing newly formed entities to challenge long-standing regulations as if they were brand new.

Walking through the facts of the case—a challenge to Federal Reserve interchange-fee rules by a company formed years after the regulation—the episode explains why the Court’s reasoning feels intuitive in individual litigation but becomes dangerous when applied to nationwide regulatory schemes. Gwen and Marc show how this eliminates finality, enables strategic plaintiff creation, and supercharges forum shopping.

The episode then examines how Corner Post interacts with Loper Bright and the Major Questions Doctrine, creating a multiplier effect: less deference, stricter substantive limits, and perpetual vulnerability to challenge. The result, they argue, is a regulatory system where no rule is ever truly settled.

The season closes by reflecting on what these cases mean collectively for the administrative state—and why understanding them is essential for anyone trying to make sense of modern governance.

What They Cover in This Episode

• How statutes of limitations normally work
• Accrual, standing, and regulatory finality
• The facts and holding of Corner Post
• “Coming to the regulatory nuisance”
• Reliance interests and settled expectations
• Strategic plaintiff creation and forum shopping
• Circuit fragmentation and regulatory chaos
• How Corner Post compounds Loper Bright