Disqualifications of Decisional Officials in Rulemaking

Strauss, Peter

What constraints on impartiality govern agency officials responsible for decisions in proceedings other than on-the-record adjudications'? The past few years have witnessed the emergence of a striking body of professional debate, statute, and case law concerning ethics in government and the control of "special interest" influence on governmental decisions. Higher standards for conflict of interest, expanded constraints on ex parte communications, and enlarged concerns about separation of functions within the agencies are parts of this development. Another strand, tangled with the others yet doctrinally distinct, concerns the disqualification of responsible government officials for their prior contacts with or expressions of opinion on issues to be brought before them for decision. In the familiar setting of on-the-record adjudication, near-judicial impartiality is a conceded requisite. Today, arguments for disqualification are being pressed with vigor, and responded to, well beyond this setting. This paper is addressed to these developments.


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Columbia Law Review Association, Inc.
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May 5, 2016