1 Jerry L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (New Haven, Conn.: Yale University Press, 1983). The disability program that is the subject of the book is established under Title II (disability insurance) and Title XVI (supplemental security income) of the Social Security Act, 42 U.S.C. §§ 401–433, 1381–1383c (1976 & Supp. V 1981).Google Scholar

2 See Jerry L. Mashaw et al., Social Security Hearings and Appeals (Lexington, Mass.: D. C. Heath & Co., Lexington Books, 1978); Jerry L. Mashaw, Report to the Grants and Benefits Committee on the Social Security Hearings and Appeals Process, in Administrative Conference of the United States, Recommendations and Reports: 1978, at 81 (Washington, D.C.: Government Printing Office, n.d.).Google Scholar

3 See Jerry L. Mashaw, The Supreme Court's Due Process Calculus for Administrative Adjudication in Mathews v. Eldridge: Three Factors in Search of a Theory of Value, 44 U. Chi. L. Rev. 28 (1976); id., The Management Side of Due Process: Some Theoretical and Litigation Notes on the Assurance of Accuracy, Fairness, and Timeliness in the Adjudication of Social Welfare Claims, 59 Cornell L. Rev. 772 (1974).Google Scholar

4 The “final” state agency is reviewed by the SSA, whose approval results in the termination of benefits. The recipient then may seek state agency reconsideration, which is again reviewed by the SSA. After the SSA approves a negative decision by the state agency on reconsideration, the recipient then is entitled to appeal to an ALJ. See Mathews v. Eldridge, 424 U.S. 319, 338–39 (1976). See also 20 C.F.R. §§404.907, 404.918, 404.920, 404.929, 404.953, 404.979, 404.981 (1983).Google Scholar

5 20 C.F.R. § 404, subpart P apps. 1 & 2 (1983).Google Scholar

6 20 C.F.R. §§ 404.1501, 404.1526, 410.426, 416.901, 416.926 (1983). Mashaw points out that the percentage of state-agency awards that have been based on the more objective meets-the-listings criteria of the regulations has doubled from 1975 to 1980 (at 175).Google Scholar

7 A 50% reversal rate by the ALJs is in itself not inconsistent with the use of similar decisional criteria by the ALJs and the state agencies. See Mashaw et al., supra note 2, at 20 (“If one assumes that the cases appealed to ALJs are borderline cases, a reversal rate of 50 percent on de novo review is a priori the correct percentage”). In this earlier work, however, Mashaw and his associates provided evidence that the 50% reversal rate of the ALJs was produced in substantial part by diversities in the ways the various ALJs approached the cases before them. See id. at 21–24.Google Scholar

8 See, e.g., Goldberg v. Kelly, 397 U.S. 254 (1970).Google Scholar

9 Such manipulation of the symbols of administration is a type of behavior attributed to many administrative agencies and condemned in Murray Edelman, The Symbolic Uses of Politics 44–72 (Urbana: University of Illinois Press, 1964). Mashaw wants to reject as too cynical Edelman's suggestion that agency behavior tends generally to mask governmental determination to be unresponsive to the interests the agencies are overtly established to protect (at 12–14), yet he acknowledges at least the possibility that the SSA may be engaged in symbol manipulation for its own organizational self-interest (at 69–70).Google Scholar

10 . See Daniel, J. Gifford, Communication of Legal Standards, Policy Development, and Effective Conduct Regulation, 56 Cornell L. Rev. 409, 414–15 (1971).Google Scholar

11 . See Ross, Alf, The Value of Blood Tests as Evidence in Paternity Cases, 71 Harv. L. Rev. 466, 482 (1958). Besides confining ALJ discretion by rules, another means of reducing decisional disparity might be to institutionalize formal discussions among the ALJs about case dispositions. See, e.g., Daniel, J. Gifford, Decisions, Decisional Referents, and Administrative Justice, 37 Law & Contemp. Probs. 3, 22–25 (1972).Google Scholar

12 . See John Henry Schlegel, , American Legal Realism and Empirical Social Science, 28 Buffalo L. Rev. 459 (1979); id., 29 Buffalo L. Rev. 195 (1980).Google Scholar

13 See, e.g., H. W. R. Wade, Administrative Law 746–49 (4th ed. Oxford: Oxford University Press, Clarendon Press, 1977).Google Scholar

14 A 1978 study of the SSA disability program directed by Mashaw considered the use of lay panels as a decisional mechanism, but concluded that the mechanisms necessary to ensure unprejudiced panel members would be incompatible with other aspects of the decisional process. That study suggested, however, that hearing panels staffed by ALJs might reduce decisional inconsistency at the ALJ level. See Mashaw et al., supra note 2, at 45–48.Google Scholar

15 . See, e.g., Galloway v. United states, 319 U.S. 372, 395–96 (1943); Brady v. Southern Ry., 320 U.S. 476, 480 (1943); Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696–97 (1962).Google Scholar

16 See Gifford, supra note 10, at 464–65.Google Scholar

17 This model is well described in Bruce A. Ackerman & William T. Hassler, Clean Coal/Dirty Air 4–7 (New Haven, Conn.: Yale University Press, 1981).Google Scholar

18 . See Henry, J. Friendly, “Some Kind of Hearing,” 123 U. Pa. L. Rev. 1267, 1298 (1975).Google Scholar

19 Id., The Federal Administrative Agencies: The Need for Better Definition of Standards 74–105 (Cambridge: Harvard University Press, 1962).Google Scholar

20 . Daniel, J. Gifford, Discretionary Decision Making in the Regulatory Agencies: A Conceptual Framework, 57 S. Cal. L. Rev. 101 (1983).Google Scholar

21 See Friendly, supra note 19, at 86–91, 103–5.Google Scholar

22 . See Louis, J. Hector, Problems of the CAB and the Independent Regulatory Commissions, 69 Yale L.J. 931, 942–43 (1960).Google Scholar

23 . See Mary Carter Paint Co., 60 F.T.C. 1827 (1962), rev'd, 333 F.2d 654 (5th Cir. 1964), rev'd, 382 U.S. 46 (1965), discussed in Gifford, supra note 10, at 432–33.Google Scholar

24 . See NLRB v. Wyman-Gordon Co., 394 U.S. 759 (1969); NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974). See also Cornelius J. Peck, The Atrophied Rule-Making Powers of the National Labor Relations Board, 70 Yale L.J. 729 (1961).Google Scholar

25 . See, e.g., Cady, Roberts & Co., 40 S.E.C. 907 (1961).Google Scholar

26 . See, e.g., NLRB v. E&B Brewing Co., 276 F.2d 594 (6th Cir. 1960). cert. denied, 366 U.S. 908 (1961).Google Scholar

27 See Roger C. Cramton, The Conduct of Rate Proceedings in the Interstate Commerce Commission 44–46 (preliminary draft n.p.: Administrative Conference of the United States Committee on Rulemaking, Dec. 1, 1961).Google Scholar