A hard look at common law administrative tribunals

Abstract

This paper looks at common law administrative tribunals. For legal-historical reasons, these bodies are located at the bottom of the judicial hierarchy or outside of it; its adjudicators often have less training, formal protections and resources than judges of the general court system, yet are required to handle a huge caseload. One difficulty is that administrative tribunals are often not part of the litigation data, skewing statistics. Another difficulty is more substantive: it makes sense for “lower courts” to be assigned cases traditionally considered less legally complicated and overall “less important”; yet common law administrative tribunals often deal with highly complex, socially sensitive legal issues with major potential consequences for litigants’ rights such as bankruptcy, immigration or welfare. Not only should common law administrative tribunals be fully counted in court data, but they should also receive more resources and sufficient judicial oversight to ensure their good operation and litigants’ rights.