An appeal on Administrative Law

In my current position I often do administrative hearings, or appeals from them. It is an interesting area of the law, one that many lawyers don't seem to know much about, to judge from the number of attorneys who have represented the other side who obivously had never done an administrative hearing. I guess that works to my advantage in the sense that even though I have very little practice experience, I often find myself much more experienced (relatively speaking) than the attorneys I face in these hearings, at least when it comes to administrative hearings.

One of the frustrating things about doing admin hearings or especially appeals from them is the very low number of binding appellate cases, particularly in a specific area of administrative law. You are lucky to find even a single case in an entire area of admin law.

This is because of the way administrative law works, generally. The "trial" actually takes place before someone who, while called an "Administrative Law Judge" or "ALJ" for short, is actually an executive branch official, so they are not a judge at all (though never say that to their face!) It looks and smells like a trial, for the most part, though there is never a jury and often there is no one else in the room but the ALJ, the parties, and their attorneys (if any). Then the only appeal by right you get is actually to a circuit court (what would regurlarly be a trial court). This can also be frustrating in that many circuit court judges are unfamiliar with how to act as appellate judges and they overstep their bounds and try and take evidence or make factual findings.

In any case, this differs from how a regular trial before a real judge would work, in that the appeal by right there goes to the court of appeals. While the court of appeals doesn't always publish cases, they can, and those published cases are binding precedent.

With an admin hearing, the appeal goes to circuit court, and no matter what the circuit court decides, there is no precedential value to it, at least, none binding. You can still appeal to the court of appeals after that, but they don't even have to take the appeal. Given the expense to even appeal to circuit court, very very few admin cases ever even make it to the court of appeals. Hardly any at all. So, for the love of all that is holy (well, holy to an atheist), WHY, does the court of appeal not publish when one finally makes it there? There really ought to be a rule that ANY admin case should be automatically published unless there is a really really strong reason not to. Otherwise, there is really no guidance for all of these hearings, and there are many, and we are left to flail about trying to interpret statutes over and over to different circuit court judges, who are often left with plenty of room to "homer" you - give a favorable ruling to one of their constituents.

So PLEASE, I say, knowing that no one of any consequence in the system will read this, but still, PLEASE. Publish those admin cases when they come your way. We need the guidance. We have almost none. Even if you publish them all, there will still be huge holes in the law. At least try and give us enough structure that we aren't totally on our own.