In his chapter of By the People about the handling of legal disputes by government regulatory agencies, Charles Murray — described by The New Republic as a conservative social theorist — shows how these can be even more ‘lawless’ than America’s criminal and civil justice systems. Because members of the public do not realise that agencies such as the Occupational Health and Safety Administration or Department of Energy effectively operate an ‘extra-legal’ system, no one sees the conflicts of interest in adjudication in their spheres that they routinely sweep under the table.
The following illustrations of the problem in Murray’s book did not seem at all unlikely after my experience of being brushed off by a court of appeal that could find no fault with the warped, partisan treatment of both law and facts by a trial court that should surely have recused itself from presiding over a civil case in which the defendant sat on its own bench.
from pages 64-65
To give you a sense of how the regulatory law system works, suppose you’re in a bar one night and get into an altercation with another customer. Blows are exchanged, blood is spilled, and the cops are called. You are arrested on a charge of assault. The case goes to trial, with you claiming self-defense.
The lead witness for the prosecution is your adversary’s date, Judy Wiseman. The prosecution itself is conducted by the district attorney, Ed Wiseman, Judy’s brother. You are found guilty. Your attorney takes the case to the Court of Appeals, consisting of a bank of three judges – Ezra, Erasmus, and Geraldine, who are, respectively, Judy and Ed’s uncle, father and mother. They affirm the lower court’s decision.
You manage, finally, to get your case before the Higher Court of Appeals, which, thankfully, has not a single member of the Wiseman clan in sight. You don’t have any new evidence, but aren’t you owed a new trial without all these conflicts of interest among the witness, prosecutor, judge and Court of Appeals? No, the Higher Court of Appeals tells you. Ordinarily, you would have a strong case – ‘no man may be judge in his own cause,’ […] but this is the Wiseman family. People named Wiseman are known to be honest, disinterested, and devoted to justice and fair play. So whenever the Wiseman family is involved, the Higher Court of Appeals defers to them.
If you don’t like analogies, here is a devastatingly direct statement of how the regulatory law system works by constitutional scholar Gary Lawson, using the Federal Communications Commission (FCC) as the example:
The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigation into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. The Commission adjudication can either take place before the full Commission or before a semi-autonomous Commission administrative law judge. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission. [… ]
This is the Orwellian rule of law in the regulatory state.
By the People, Charles Murray, Crown Forum: Penguin Random House (2015)