Choreographing Justice: Administrative Law Judges and the Management of Welfare Disputes
| Date | 01 June 2013 |
| Author | Vicki Lens,Tina Wu,Andrea Hughes,Astraea Augsberger |
| DOI | http://doi.org/10.1111/j.1467-6478.2013.00620.x |
| Published date | 01 June 2013 |
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 2, JUNE 2013
ISSN: 0263-323X, pp. 199±227
Choreographing Justice: Administrative Law Judges and
the Management of Welfare Disputes
Vicki Lens,* Astraea Augsberger,* Andrea Hughes,*
and Tina Wu**
A significant form of civil justice is administrative hearings, used to
resolve individual disputes in the provision of government welfare
benefits. Drawing from ethnographic observations, analysis of
recorded transcripts of the hearings, and interviews with admini-
strative law judges in the United States, we examine two contrasting
approaches to judging, one a `bureaucratic' approach which
replicates the style of decision-making on the front lines, and the
other an `adjudicatory' approach which relies on the norms and con-
ventions of judicial de cision making. To unders tand how each
approach manifests in the hearing room, we use the methodology of
conversation analysis to compare and contrast the different verbal
strategies and techniques that characterize each approach. To
understand why a judge may choose one approach over another we
explore how judges construct their professional identity and manage
the tasks of judging.
INTRODUCTION
Quasi-judicial forums, commonly referred to as fair hearings or admini-
strative hearings, exist in every public welfare bureaucracy in the United
States to resolve disputes between individual citizens and government
199
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School. Published by Blackwell Publishing
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*Columbia University School of Social Work, 1255 Amsterdam Avenue,
New York, New York 10027, United States of America
vl2012@columbia.edu aa357@columbia.edu ah2793@columbia.edu
** University of Pennsylvania, Department of Sociology, 3718 Locust Walk,
Philadelphia, Pennsylvania 19104-6299, United States of America
tianying.wu@gmail.com
This study was supported by grants from the United States National Science Foundation,
Law and Social Science Program, grant no. 0849193 and the Fahs-Beck Fund for
Research and Experimentation of the New York Community Trust.
officials over the provision of welfare benefits. As the sole recipient-
triggered mechanism for correcting arbitrary and erroneous denials of aid,
they are a potential source of power for citizens, allowing them to be heard
in ways not required on the front lines of the welfare bureaucracy. In contrast
to the rote and mechanical application of rules that characterizes welfare
interactions, hearings afford a more individualized style of decision making.
1
The dictates of due process also potentially put government officials and
citizens on a more equal footing, with each having an opportunity to testify,
present documents, and cross-examine witnesses.
However, these same processes can have the opposite effect, handi-
capping citizens who are unfamiliar or uneasy with the law's rule-oriented
focus.
2
Procedures designed to inform and provide a protected space to speak
can be circumvented or diluted by the more powerful actors in the room.
Embedded within the bureaucracy, and populated with official actors with
dual bureaucratic and judicial identities, this hybrid form of interaction,
consisting of both institutional talk and legal talk, can reflect bureaucratic
imperatives and practices. In short, it can replicate and reinforce the stigma
and powerlessness of welfare interactions.
Whether hearings function as an opportunity for citizens to be heard is
greatly influenced by the administrative law judge, the chief choreographer
of the proceedings. Previous research by the first author, drawing from
ethnographic observations of fair hearings and analysis of recorded tran-
scripts of the hearings found two contrasting approaches within the hearing
room, one a `bureaucratic' approach which replicated the style of decision
making on the front lines, and the other an `adjudicatory' approach which
relied on the norms and conventions of judicial decision making, and which
opened up a space for citizens to challenge the bureaucracy.
3
The existence
of the adjudicatory approach challenges past conceptions of fair hearings as
uniformly sites of bureaucratic control. It reveals their capacity to realign
and readjust deeply unequal welfare relationships and institutionalized
imbalances of power. The bureaucratic approach, however, illustrates the
fragility of this feat, and the precarious position fair hearings occupy within
the welfare bureaucracy.
200
1 R. Kagan, `The Organisation of Administrative Justice Systems: The Role of Political
Mistrust' in Administrative Justice in Context, ed. M. Adler (2010) 161; W.H. Simon,
` Legality, Bureacracy and Class in the Welfare System' (1983) 92 Yale Law J. 1198.
2 J. Conley and W.M. O'Barr, Just Words: Law, Language and Power (2005); L.
White, `Goldberg v. Kelly: On the Paradox of Lawyering for the Poor' (1990) 56
Brooklyn Law Rev. 861.
3 V. Lens, `Judge or Bureaucrat? Examining how Administrative Law Judges Exercise
their Discretion in Public Welfare Bureaucracies' (2012) 86 Social Service Rev. 269;
V. Lens, `Confronting Government after Welfare Reform: Moralists, Reformers, and
Narratives of (Ir)Responsibility at Administrative Fair Hearings' (2009) 43 Law &
Society Rev. 563.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
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