Criminal Justice

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 decision making. To understand 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

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Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA

* Columbia University School of Social Work, 1255 Amsterdam Avenue, New York, New York 10027, United States of America [email protected] [email protected] [email protected] ** University of Pennsylvania, Department of Sociology, 3718 Locust Walk, Philadelphia, Pennsylvania 19104-6299, United States of America [email protected]

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.

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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.

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This study extends this research in two ways. First, to understand more fully how each approach manifests in the hearing room, we use the method- ology of conversation analysis, a form of linguistic analysis that analyses language as it is constructed in social interaction.4 We use a specific form of conversation analysis focused on `institutional talk' or how `institutional realties are evoked, manipulated and even transformed in interaction' through language to compare and contrast the different verbal strategies and techniques that characterize the bureaucratic and adjudicatory approach.5

Second, to understand why a judge may choose one approach over another, we draw on the observational data of the hearings and interviews with administrative law judges to explore how they construct their professional identity, including how they perceive their role within the welfare bureaucracy and how they manage the tasks of judging.

THEORETICAL FRAMEWORK

The familiar depiction of welfare bureaucracies and the disputes they generate is one of control and surveillance, with citizens confronting a Kafkaesque set of demands that frequently result in the denial of aid.6 The legal formalism that supplanted a more individualized and contextualized approach to decision making often translates into a form of hyper-legalism and excess proceduralism . Rules are frequently misapplied or misconstrued; their rote and mechanical application to a wide variety of citizens and circumstances frequently results in arbitrary denials of aid.7 The recent trend towards individuation, or the recognition that the self-sufficiency demanded by welfare reform requires flexibility and customizing to individuals needs, has also highlighted the deficiencies of an excessive reliance on rules for determining aid.8

The chosen mechanism for correcting the errors of the administrative state is the quasi-judicial forum of administrative fair hearings. While still within the mode of legal formalism, fair hearings emphasize, in theory if not in fact, individualized justice, conflict and the legitimacy of opposing views, and a

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4 J. Heritage, `Conversation Analysis and Institutional Talk: Analysing Data' in Qualitative Research: Theory, Method and Practice, ed. D. Silverman (1997) 161.

5 id., p. 162. 6 J. Gilliom, Overseers of the Poor: Surveillance, Resistance, and the Limits of Privacy

(2001); Simon, op. cit., n. 1. 7 E. Brodkin and M. Majmundar, `Administrative Exclusion: Organizations and the

Hidden Costs of Welfare Claiming' (2010) 20 J. of Public Administration Research and Theory 827; J. Handler, The Conditions of Discretion: Autonomy, Community, Bureaucracy (1986).

8 K. Noonan, C. Sabel, and W.H. Simon, `Legal Accountability in the Service-based Welfare State: Lessons from Child Welfare Reform' (2009) 34 Law & Social Inquiry 523.

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non-hierarchical decentralized form of decision making.9 As Simon explains, administrative hearings are `the principal form of decision-making in which the system tolerates complex judgment, decentralization and professionaliza- tion.'10 Hearings can serve as a counterbalance to the often mechanized and rigid decisions made by an unskilled workforce, with skilled professionals administering individualized justice.11 The professionally sanctioned form of discretion exercised by judges can hold in check the uncontrollable and undesirable discretion that often seeps out on the front lines.12 Hearings can correct both the misapplication of law resulting from this ill-directed discretion, and also the unintentional but ubiquitous errors that result from the mass processing of cases in a modern welfare bureaucracy.

While hearings have been required since the inception of the Aid to Dependent Children (ADC) programme in 1935, they were rarely used during the first several decades of the programme, in part because they were provided after the termination of benefits, too late to help recipients ward off the immediate harm caused by the cessation of benefits. That changed in 1970 with the United States Supreme Court decision in Goldberg v. Kelly, which held that states were required to provide hearings before the termination of benefits under the due-process clause of the Constitution.13

The Court found that the statutory scheme that granted welfare benefits was a form of property that required procedural safeguards to protect the recipient from arbitrary government action. The Kelly decision also set the procedural template for hearings; while it held that hearings need not be judicial trials, it imported many of the features of adversarial judicial proceedings, including a chance to argue the case orally before an impartial judge, to bring and cross-examine witnesses, and to receive a written decision.

The reliance on adversarial style procedures to resolve disputes between parties of unequal power has long been criticized. While adjudicatory decision making is different from bureaucratic decision making, it has its own specific formalism, requiring adherence to a set of rules that may result in an unjust social result, but a legally correct one. Further, while procedural rules are designed to give each party an opportunity to speak and be heard, even the more informal style of administrative adjudications are often difficult for socially subordinated persons, including welfare recipients, to

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9 M. Adler, `Understanding and Analysing Administrative Justice' in Adler, op. cit., n. 1, p. 129; J. Mashaw, `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' (1973±74) 59 Cornell Law Rev. 772.

10 Simon, op. cit., n. 1, p. 1269. 11 D. Super, `Are Rights Efficient? Challenging the Managerial Critique of Individual

Rights' (2005) 93 California Law Rev. 1051. 12 Noonan et al., op. cit., n. 8. 13 Goldberg v. Kelly [1970] 397 U.S. 254.

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navigate. 14As White observes, the speech and verbal strategies used by subordinated groups may impede their opportunity for meaningful participation.15 Recipients used to talking in a conversational style may have difficulty responding to open-ended questions or making formal presentations. Their more relational style of communication is also out of sync with the linear, declarative style of the law.16 Such a style often incorporates social facts that are less relevant to the legal issues, forcing judges to restructure the account and weed out extraneous facts.

Welfare recipients face additional barriers. Although hearings are ostensibly a protected space for speaking, recipients may fear retaliation if they speak critically about their caseworkers.17 A polite and deferential style of speech that is advantageous when engaging with caseworkers may be less effective in the hearing room, where a strong declarative style is more credible. Similarly, recipients may find it difficult to avoid the language of subordination before judges, whose status and power may intimidate them. The stigma of welfare receipt may also make it harder for recipients to speak with `confidence and credibility' especially if they believe the judge and others are predisposed to disbelieve them.18 In White's classic recounting of `Mrs. G's' fair hearing experience, she exposes the silencing and sub- ordination that occurs when citizens dependent on the state are confronted with the rigidity of the rules and the stark disparity between their needs and the welfare system's offerings.19

In short, what occurs within the hearing room is woven out of the cloth of previous institutional interactions and realities, where the appellant has been constructed as dependent or subject, under the control and surveillance of the state.20 The spectre of power ± the appellant's lack of it and the institution's abundance of it ± is present in virtually every institutional exchange, from the front lines to the hearing room. Procedural protections may be diluted by the other, more powerful actors in the hearing room, the judge and agency representative, as they `struggle[e] to dominate discussions of the event by promoting their interpretation of the problem.'21 Such actors may take advantage of interactional asymmetries, using their status as insiders with specialized professional knowledge to control and direct the conversation,

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14 Conley and O'Barr, op. cit., n. 2; L. White, `Subordination, Rhetorical Survival Skills, and Sunday Shoes: Notes on the Hearing of Mrs. G' (1990) 38 Buffalo Law Rev. 1.

15 White, id. 16 Conley and O'Barr, op. cit., n. 2. 17 J. Soss, Unwanted Claims: The Politics of Participation in the U.S. Welfare System

(2002). 18 White, op. cit., n. 14, p. 37. 19 id. 20 Gilliom, op. cit., n. 6. 21 S.E. Merry, Getting Justice and Getting Even: Legal Consciousness among Working-

class Americans (1990) 93.

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thus preventing the appellant from fully developing his or her narrative of the dispute.22 The common social and organizational status of hearing officers and agency representatives, who share the language of law and bureaucracy, may crowd out alternative versions of a dispute. Thus, even though it is appellants who trigger the appeal, they may be positioned as outsiders or interlopers.

However, official actors can use their power in positive or negative ways.23 As this author's previous research demonstrated, hearings are a complex and fluid forum, with judges differing in the ways they employ their power.24 While hearings do not exist apart from pre-existing institutional interactions, they are also a `product of the participants' actions'.25 State actors wear many faces; they are not monolithic. Hearing interactions are temporal and malleable and contain contradictions within them. Shaped by both structural and institutional forces and acts of agency by individual state actors and citizens, they are continually co-constructed and co-created as citizens and state actors interact. While judges can replicate the bureau- cracy's worst excesses by employing a bureaucratic and mechanical approach, they can depart from this model, implementing the norms and practices expected of judicial actors, and which allows them, within the constraints of the substantive law, to use their power to scrutinize and correct the bureaucracy.

This study dissects the language and verbal strategies underlying each approach. Drawing from a data set comprised of observational data of hearings, two hearings are chosen that are representative respectively of the `bureaucrat' and `adjudicatory' approach. Then, to more fully understand why judges choose one approach over another, we draw from both the observational data and interviews with the judges, to examine what they think about their work and how they do their job.

RESEARCH DESIGN

The larger study, of which this is a part, drew on observational data from two fair-hearing units located in a state in the northeast of the United States. The data was obtained using a type of sociological ethnography referred to as focused ethnography, which examines specific and well defined interactions, acts or social situations in the field rather than an entire system or culture.26

It is characterized by relatively short-term field visits and intensive data collection. The data often consists of technically recorded data, in addition to

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22 Heritage, op. cit., n. 4. 23 Adler, op. cit., n. 9. 24 Lens, op. cit., n. 3 25 Heritage, op. cit., n. 4, p. 163. 26 H. Knoblauch, `Focused ethnography'( 2005) 6 Forum: Qualitative Research 44.

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field notes, allowing the researcher verbatim and oral access to naturally occurring talk in a social interaction. Focused ethnography is especially suited to the observation of hearing interactions, which are episodically structured exchanges, bounded in space and time, and which have been recorded and preserved.

Hearing observations were conducted between 2007 and 2009 by the first author and included 199 hearings presided over by seventeen different judges.27 The data included recordings of 129 of the hearings, recorded by the state agency handling the appeals,28 written transcriptions of this recorded data and the first author's field notes of her observations of all of the hearings, which included informal conversations with the judges, and interviews with appellants. Analysis of this data using grounded theory conventions, and reported elsewhere (see n. 3), revealed two divergent approaches to judging, as described above.

This study involved the selection of two cases (`Jones' and `Miller') that were illustrative of each approach, and analysing them using the method- ology of conversation analysis, and more specifically, a form of conversation analysis focused on verbal interactions within institutional settings.29 This approach is particularly suited to this study for several reasons. First, like this study, it focuses on conversations within institutional settings where people are engaged in specific and particularized tasks as structured by the institution. Second, as described below, this approach incorporates concepts of social structure and power, which is a major focus of our study, by recognizing asymmetries of power between the various actors within an institution.30

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27 Hearings were observed in two different sites, with 129 hearings observed in an urban fair-hearing unit, and 70 in a suburban fair-hearing unit. Both fair-hearings units were located in the same state, and supervised by the same state entity although operated as distinct units. The findings reported in this study apply equally to both. For a discussion of the differences among the units, see V. Lens, `Redress and Accountability in US Welfare Agencies' in Work and the Welfare State: Street- Level Organizations and Workfare Politics, eds. E.Z. Brodkin and G. Marston (2013).

28 Recordings were only available to the researcher for the hearings observed in the urban unit.

29 Heritage, op. cit., n. 4, p. 62. We also draw from a method of analysis called ethnography of discourse, a term coined by Conley and O'Barr in their classic work, Rules versus Relationships, to denote an approach that places language centre-stage, as `the object rather than merely an instrument of analysis': J.M. Conley and W.M. O'Barr, Rules versus Relationships: The Ethnography of Legal Discourse (1990) xi.

30 While we use a particular form of conversation analysis that recognizes power differentials between the parties, we also deviate from this approach by first relying on observational and other material beyond the transcripts of the hearings, and second, by situating our analysis within the larger social and political context within which government welfare bureaucracies operate. This addresses a common criticism of conversation analysis, specifically, that it focuses too much on the mechanics of language (what is being said) rather than its context (why it is being said), thus

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The selection process involved first reviewing all of the hearing transcripts and eliminating those that involved only brief interactions, for example, where the hearing took only minutes and primarily involved the agency withdrawing its notice, or those where an interpreter was present (thus altering hearing interactions and requiring a different kind of analysis). The remaining transcripts were then reviewed to select from each judge observed the most data-rich sources, which were defined as hearings which had proceeded to the merits and where there were substantial exchanges between the parties over issues of substance. The `Jones' and `Miller' hearings were selected because among this sample they contained the most detailed and rich examples of each approach.

The transcripts and recordings of the Miller and Jones hearings were segmented into three parts for analysis as described below: opening, problem initiation and definition, and contestation, with these segments considered the unit of analysis. Data sessions were conducted where the first author and three research assistants met to listen to the recordings and compare their analysis and interpretation. These meetings were preceded and followed by an exchange of written analytic and interpretative memos between the researchers until consensus was reached on the findings.

An inductive approach to data analysis was used, which involved the coding and interpretation of key moments of exchange from the verbatim transcripts and recordings, as described by Heritage and which included the following: `turn-taking organization' or the order of speakership, including who says what when; `sequence organization' or how particular courses of action are initiated or progressed; `turn design' or how speakers construct questions or statements; and `lexical choices' or the selection of descriptive terms to describe, for example, organizational tasks or contexts.31 We also analysed, as described by Heritage, `interactional asymmetries' including `asymmetries of participation' or who has the power to direct conversation in institutional settings and how they do so, and `asymmetries of institutional know-how and knowledge' or who has insider knowledge and who does not, and how it is used over the course of an exchange.32

Case comparative analysis was then used to compare the interpretations and findings in the Jones and Miller hearings with all the other cases in the sample.33 As an example, an analysis of these two hearings revealed a disruption in the formal turn-taking sequences with the appellants not invited to make a formal and uninterrupted presentation of their case. A review of

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neglecting the political, social, and cultural context. M. Travers, `Understanding Talk in Legal Settings: What Law and Society Studies can Learn from a Conversation Analyst' (2006) 31 Law & Social Inquiry 445. See, also, Conley and O'Barr, op. cit., n. 2.

31 Heritage, op. cit., n. 4. 32 id. 33 B. Glaser and A. Strauss, The Discovery of Grounded Theory: Strategies for

Qualitative Research (1967).

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other transcripts (and field notes from those hearings where recordings were not available) revealed a similar pattern. Thus, while the Jones and Miller cases serve as the centerpiece of the conversation analysis below, these additional cases were used to confirm and deepen the analysis.

To understand more fully how judges choose one approach over another, and more generally, how they experience and think about their jobs, three sources of data were used: the observations of hearings, informal conversations that occurred between the parties and the first author before and after the formal hearings, and formal interviews with the judges. The formal interviews utilized a semi-structured interview guide consisting of open-ended questions about the judges' initial training and experience, their approach to conducting hearings, their perception of appellants and the hearing process, their decision-making processes, and their views of the welfare system.34 The interviews thus allowed the judges to express in their own words what it was like to be a judge, how they handled their everyday tasks, and their perceptions of the hearing system and their role in it. The first author conducted all the interviews. Ten of the seventeen judges observed participated in these interviews, which lasted between one and two- and-a-half hours. The observational data of hearings captured what judges actually did during hearings and how their beliefs, perceptions, and attitudes were operationalized in their day-to-day interactions. The informal conversations provided another valuable source of data because the judges often reflected on the cases they had just heard, and talked spontaneously about their experiences as judges.

Grounded theory conventions were used for data analysis, using the conceptual categories of `bureaucrat' and `adjudicator' as formulated by the first author in her earlier analysis of the data, referred to above. The dimen- sions and properties of these two categories were refined and expanded, with the analysis focusing on the judges' attitudes and beliefs about welfare recipients, their roles and responsibilities, and descriptions of the style and tone they set in the hearing room. Examples of codes that emerged from this analysis included `comfort', defined as instances where the judge described efforts to make appellants comfortable within the hearing room; `control' defined as instances where the judge described the need to maintain order and calm in the hearing room; and stereotyping/stigma where a judge expressed negative views of welfare recipients.

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34 Since I was not granted permission to tape-record these interviews, I took notes only. To ensure the accuracy of my notes, I sent each judge my composed notes and requested that they check them. Seven of the judges responded to this request and provided me with corrections and edits.

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FINDINGS

1. Exploring the language of power(lessness): a conversation analysis

In the state where this study was conducted, local counties administer welfare benefits, determining eligibility and dispensing aid. Applicants and recipients of aid can appeal any denial, reduction or discontinuance of aid to the state department of social services, which operates the fair-hearing system, and provides overall supervision to the local counties through the issuance of regulations and administrative directives that interpret and explain social service laws. Disputes primarily involve discontinuances or denials of public assistance based on a failure to establish eligibility, and reductions or discontinuances for failing to comply with rules mandating engagement in work activities as a condition of receiving assistance.35

Judges are selected through the state's civil service system and must be law school graduates admitted to the state's bar. They do not come from the ranks of the welfare bureaucracy, and prior experience as a judge or working with low-income populations is not required. The welfare agency is represented by a lay employee, often specially trained as a fair-hearing representative, while appellants are rarely represented by legal counsel or advocates. Hearings do not take place in a courtroom, but in the judge's office, which is set up with a table extending from the front of the judge's desk, where the judge sits when presiding over hearings, with the agency's representative and the appellant facing each other across the table.

Hearings are structured, in essence, as a paler version of court pro- ceedings, in part to accommodate its primary users, typically people with low levels of education, little legal experience, and low social status. Thus, in the state where this study was conducted, while the judge is required by the governing regulations to elicit documents and testimony, rule on the admissibility of evidence, and determine the credibility of witnesses, these same state regulations also provide that the technical rules of evidence need not apply. While judges are expected to be impartial and not to play an investigatory role, the regulations also permit judges to assist appellants in eliciting documents and testimony, especially when appellants are having difficulty presenting their cases.

While more informal than court proceedings, hearings are a form of skilled conversation that is ritualized and structured differently from

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35 Mandated work activities are required under federal and state laws and require recipients to attend assessment appointments, search for a job, or work in subsidized or unsubsidized employment or work experience programmes. Failure to comply with the work rules results in the imposition of a sanction, which is a pro rata reduction of the violator's portion of the grant and which can be appealed through the fair-hearing process. Appellants can show `good cause' such as an illness or family emergency that prevented them from complying with the work rules.

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ordinary conversations. Their overall structural organization, as described above, consists of three parts: the opening or initial exchange where the parties' identities and the procedural rules governing the conversation to follow are established; problem initiation and definition where the nature of the dispute is first defined; and contestation where the parties challenge each other's version of the problem.36

The two hearings that form the centrepiece of this analysis involved discontinuances of assistance for failure to attend a required appointment with the Department of Social Services. In the Jones case, an example of the bureaucratic approach, the appointment was to recertify the appellant's eligibility for assistance and provide verification of her work hours and residence.37 In the Miller case, an example of the adjudicatory approach, the missed appointment was related to the work rules, which require citizens receiving public assistance to attend various work-related appointments in order to maintain their benefits.38 The two contrasting approaches exemplify the widest range of behaviours that the judges exhibited. While the dominant behaviour of any particular judge may be `bureaucratic' or `adjudicatory', it should be noted that human behaviour is complex and variable, with judges capable of moving between these two dissimilar approaches as they responded to different appellants in specific contexts.

(a) Opening

Judges are provided with a standard opening script that explains how the hearing will proceed. Some read the script verbatim, others truncate or expand it. In the Jones hearing, Judge Davis slightly modifies the script, but delivers it in a manner that creates a less participatory environment as she confirms the reason for the hearing and the conversational turn taking that will govern it:39

This hearing was scheduled to review the agency's determination to discontinue the appellant's public assistance and food stamps pursuant to a notice dated April 29th, 2009. First Ma'am I'm going to ask you a few questions and then Mr. A will present the agency's case. Afterwards you will have the opportunity to present additional statements and documents if you wish. If you ask the agency for documents necessary for this hearing and the agency fails to provide them please bring this to my attention.

Substantively, the description of the process is bare-boned, describing little more than who speaks when but with no further explanation of the

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36 Heritage, op. cit., n. 4. 37 To protect confidentiality, all names are pseudonyms. 38 See n. 35 above. 39 As suggested by Conley and O'Barr, op. cit., n. 2, p. xv, to allow for greater

understanding and accessibility to readers, excerpts from the transcripts are presented in a simplified format, without the linguistic transcribing conventions used by conversation analysts.

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parties' respective roles or evidentiary requirements. The reference to documents the agency must provide upon request is cryptic; its relevance is not readily apparent as the judge does not specify when or how they should be provided. The judge uses a lexicon, including terms like `determination', `notice' and `documents' that are the language of bureaucracy and law. Directed at laypersons unskilled in adversarial proceedings and often with low levels of education, it confuses rather than edifies, emphasizing rather than levelling power imbalances.

The judge's tone further reinforces the appellant's disadvantages and status as an outsider. It is spoken rapidly and in a remote manner, with the individual sentences inflicted downward rather than upward, thus not inviting questions or dialogue. It is a formal and authoritative routine recitation of a script repeated with minor variations through innumerable hearings. It signals that for the judge this is a routine case, in contrast to the appellant, for whom the experience is personal and unique, thus reinforcing their asymmetrical positions.

Addressing the appellant as `Ma'am', while referring to the agency representative by his full formal name ± a dichotomy that continues throughout the hearing ± depersonalizes the appellant. While appellations such as `Ma'am' are usually construed as a form of politeness, in this context it denies the appellant's individuality and constructs her as an interloper, in contrast to the judge and agency representative who are insiders connected by their respective official roles. Although it is the appellant who triggered the hearing, the judge sets the stage for her non-participation, telling her she can present testimony and documents after the agency's presentations, `if she wishes'. The agency's presentation is thus portrayed as the essential one, the appellant's as a voluntary afterthought.

In contrast, in the Miller case the judge uses his opening statement to educate and inform and to encourage the appellant's participation. He begins by stating, `Ms. Miller, good afternoon again. My name is John Wilson.' Thus, unlike Judge Davis who uses the generic and impersonal appellation `Ma'am' when referring to the appellant, Judge Wilson personalizes and individualizes the encounter by referring to the appellant by name. He then gives the lengthiest opening statement of all the judges observed, embellishing on the standard script in multiple ways as follows:

Let's first explain how hearings work, and then we'll introduce everybody around the table here, and then we'll get into the heart of matter. First of all, as far as hearings, hearings go this way. Each side presents their case through their testimony and whatever documents you want to submit. (Uh huh.) Each of you will have an opportunity to question each other back and forth, and of course, I get involved in questioning also. (Okay.) Then, everything, including the tape recording, the entire record of it is sent up to the Commissioner, who reviews it again. (Uh huh.) He makes a decision on it and sends that decision to you by mail. (Okay.) If you've requested any documents from the city, for today's hearing, and the city failed to provide them to you, I need you to bring that issue to my attention right away. Because that's very important in the law.

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(Okay. Okay.) Okay? The gentleman seated across from you is the city's representative. (Both parties identify themselves for the record.) With these types of issues ± all the ones you have here ± reductions and

discontinuing, there's a thing in the law called the burden of proof. And, what it means is that's the person who has the responsibility to go first and prove that they have a valid case before the other side contests something wrong with it. (Right.) That burden is on Mr. B. for today. Okay? Because, all your issues are those types of that the city has the burden first. So, I'm gonna be asking him to go first. (Okay.) Keep in mind, he doesn't know you personally. So, he's not gonna testify. There's nothing he can testify to. He's gonna produce his case by handing over a series of documents to me and the same set of documents to you. (Okay.) So that we all have the same exact set. (Okay.) Yours are for you to keep. Mine, I'll review and I'll send up to the Commissioner. Keep in mind that all these papers have a lot of your personal information on them. Don't be casual about them when you take them. (Alright.) If you're gonna get rid of them, shred them, because you don't want the public to get any access to your personal information. Now, before we start that, I want to get a couple of things as far as

background. Keep in mind, I'm a neutral, ________ State judge, looking at your dispute with ________. So, I don't know a lot about your case. You're gonna have to be, you're gonna have to be my teacher. When you're explaining things to me, do it as detailed as possible, because you gotta, I'm, my first impression of what's going on is gonna be what I'm getting from you. And, if you brought documents you think might be helpful, please bring them out because they often help me fill in the blanks.

This expansive and detail-rich opening script is an example of how official actors can transform perfunctory and obligatory institutional scripts into interactions that fit appellants' needs and which readjust asymmetries of power. Much of the opening statement, including the step-by-step descrip- tion of the process, the explanation of legal terms and the role of the agency representative, provide appellants with insider knowledge, thus reducing institutional asymmetries. Language like the inclusive `we' and conver- sational turns of phrases (`we'll introduce everybody around the table here and then we'll get into the heart of matter') functions as an equalizer, establishing a less authoritative and exclusionary tone. The judge repeatedly positions the appellant as an equal participant; for example, when he explains that the agency representative is `gonna produce his case by handing over a series of documents to me and the same set of documents to you. (Okay.) So that we all have the same exact set.' The judge also emphasizes his neutrality ± `I'm a neutral, ________ State judge, looking at your dispute with ________. So, I don't know a lot about your case' ± and his willingness to hear the appellant's side: `When you're explaining things to me ± do it as detailed as possible, because you gotta, I'm, my first impression of what's going on is gonna be what I'm getting from you.' By telling the appellant `you're gonna be my teacher today', he positions her as an expert on the facts of the dispute. His assignment of the more powerful role of teacher also disrupts and inverts welfare relationships that cast appellants as unknowing and powerless subordinates.

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(b) Problem initiation and definition

After the opening rituals the reason for the hearing ± that is, the dispute ± is initiated and defined. Who gets to initially define the dispute ± the agency or the appellant ± is governed by the procedural rules of the adversarial process. In cases where the agency has sent a notice discontinuing or reducing the appellant's assistance, the agency proceeds first because, in legal parlance, it has the burden of proof and must justify its decision to deny or reduce the appellant's benefits. When the agency has denied an application for assistance, the appellant has the burden of proof because they must establish their eligibility for assistance.

The vast majority of cases involve people already on assistance; hence, in most cases the agency presents its case first. For the agency to meet its burden of proof and demonstrate that its decision to discontinue benefits was correct, it must show that the appellant did something wrong, for example, by failing to return requested documents or attend a mandated appointment. Thus while hearings are triggered by appellants, they usually begin with a recitation of the appellant's mistakes, as alleged by the agency.

The agency's presentation of the appellant's mistakes is highly ritualized and standardized. Agency representatives have no personal knowledge of the case and cannot testify to the events in question. Their sole job function is to defend the agency on appeals, and they are not involved in decision making on the front lines. Thus they rely solely on official documents, presenting their cases through the submission of these documents, which involves naming the document and often reading an excerpt written in standard bureaucratic language, which provides few details. Copies are handed to the judge and the appellant, with the judge marking them into evidence.

Drawing from standard legal conventions for submitting evidence, this segment of the hearing is virtually identical from hearing to hearing, including the Miller and Jones hearings. It is the most formalized and structured segment of hearings, identically scripted by the agency repre- sentative and the judge, who perform a kind of duet, with the appellant as the audience. Thus, in the Miller hearing, the agency representative initiates the ritual by reading from a Notice of Intent, stating that the appellant's case was closed because she `was required to meet with the employment assessment unit on June 27th'; the judge responds by taking the document and stating, `Notice of intent is being marked agency number one.' This document is followed by a copy of an appointment notice to meet on that date, and then an internal report that records each action taken on the appellant's case which indicates she missed the appointment. Documents are often referred to by their bureaucratic moniker, for example `a one fifteen'. The judge and agency representative talk back and forth, sometimes reading from the documents to decipher them, with the appellant often excluded from these conversations.

As noted above, and as required by the rules of legal procedure, the document is shown to the appellant as it is submitted into evidence so that he

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or she has an opportunity to object to its submission. However, judges rarely explain this to appellants. For example, in the Jones case, the judge states `I just want to note for the record the appellant is being presented with copies of the documents submitted into evidence' without any further explanation.

This asymmetrical use of insider knowledge and documents during the agency's presentation positions the appellant outside of the institutional conversation. Documentation, or the reduction of every transaction into a written form that stands for the actual event, is the sine qua non of bureaucracies. As the coin of the realm, documents take on a rarified role in disputes. Used to evaluate the truth of a lay person's claims, they are imbued with an objectivity and solidity, despite the fact they may be `partisan accounts that express and obscure the interests of those who construct and use them'.40 Prior definitions of the dispute, as contained in official agency documents, became difficult to dislodge, even as they perpetuate the very errors and institutional forms of recording and interaction that appellants are challenging.

Outsiders like appellants, who are not involved in their creation and who often don't understand them, have a difficult time contradicting this official version of events. Most appellants remain passive when they are handed copies of these documents, either unaware that they can object or uncertain as to how to do so. Confronted with official documents that reveal, often obliquely and without detail, their failure to conform to the bureaucracy's demands, appellants are silent during these crucial moments when the dispute is defined. Appealing to correct an agency error, they are confronted with their own.

In sum, problem initiation and definition are influenced by the structural and procedural requirement, observed by all of the judges, which requires that the party who has the burden of proof goes first. At this stage of the hearing there is little difference among the judges, who handle this highly ritualized segment of the hearing in similar ways. In most cases, it is typically the agency that initially frames the contours of the dispute, meeting its burden of proof by demonstrating that the appellant failed to comply with agency rules and is hence ineligible for benefits. Constructed around standardized notices and documents which reveal little and are nearly identical from appellant to appellant, the agency's version is often a reductive and incomplete version of events. This initial emphasis on official documents, rather than on personal knowledge and testimony, bureaucratizes the dispute, and advantages institutional actors with insider knowledge and expertise. At this stage of the hearing, appellants have little influence over how the dispute is defined.

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40 G. Miller and J.A. Holstein, Dispute Domains and Welfare Claims: Conflict and Law in Public Bureaucracies (1996) 9.

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(c) Contestation

Once the dispute is defined it is then contested. As quasi-judicial pro- ceedings, hearings are governed, albeit loosely, by a set of basic procedural rules establishing how contestations proceed. Turn-taking sequences are structured to allow each party to challenge the version of facts put forth by the other. Thus, after the agency presents its case, appellants are entitled to question the agency, using a form of legal dialogue called cross-examination. Then the appellant presents his or her case, with the agency getting its turn to cross-examine the appellant. The judge can interrupt where he or she see fit, asking either the agency or the appellant questions.

Hearings, however, rarely follow this structured form of turn-taking con- testation. As noted above, although more prescribed than ordinary institu- tional interactions, they are less formal than court proceedings. Unlike the latter, people are seated in close proximity to one another, encouraging more relaxed conversational exchanges. Appellants are also unfamiliar or uneasy with the formalized turn-taking of legal procedures, and are not represented by counsel. It is not uncommon for the judge to by-pass the formal structure, with appellants failing to cross-examine the agency or make a formal and uninterrupted presentation of their case. Rather, appellants simply respond to questions posed by the judge (or the agency); thus, unlike the agency, appellants often do not formally present their case on their own terms.

Questions play a central role in adversarial proceedings. Legal dialogue relies on the use of questions to test the credibility and veracity of the speaker's version of the facts. Narratives (or direct testimony) are elicited through the use of questions, for example, `what happened here? What did you do next?' Likewise cross-examinations consist of a series of questions posed to an opposing party. As noted above, the agency's official documents frame the inquiry; in other words, appellants seldom narrate their version of the facts from a clean slate. Since the appellant rarely makes a formal presentation, what the judge asks them, and how it is asked, will shape what gets said, or is left unsaid, at hearings. In contrast to the presentation of the agency's case, which is highly ritualized and structured, the judge has ample room to shape this segment of the hearing. The judge's choice of questions will determine, in essence, whether conflicting accounts will emerge, or whether appellants' versions of the dispute will be redirected to a path not intended by them, or thwarted all together and replaced with the bureaucratically preferred one.

In short, judges can choose to either reinforce the agency's narrative or invite dual narratives to emerge. In the Jones case, the judge kept closely to the agency's narrative, limiting the appellant's ability to present a different version of the facts. After the agency's presentation of the case the judge gives a summary of the agency's case, and then invites the appellant to respond:

Judge: The agency contends it took action to close your case because you didn't provide the requested documents by April 20th. They showed me an

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appoint, uh a request document. Can you tell me what happened?

The appellant explains `I was in school at that time and I couldn't make it for the appointment date' and that she went back to the agency with the requested documents but was advised to request a fair hearing because she `passed the deadline'. She explains the agency also gave her an appointment to come back in with the requested documents, which she did. The judge refocuses the hearing on the appellant's original failure to submit the documents as follows:

Judge: Why didn't you contact them before to let them know you're not going to make it? Appellant: Uh. I was in school that whole time and they knew because I, I gave them the letter. Judge: That's all good and well but once they give you an appointment notice they are expecting something from you by that appointment date, when they don't get it they take action against you. (AP: Allright) Judge: I don't know why you wouldn't pick up the phone to try and contact them, I'm not going to be able to make it but I'm working on it and I could get it to you by this date. Why wouldn't you do something like that? Why wouldn't you follow through? Appellant: When I called they messed it up. They always the phone keeps ringing, or closes down. Judge: You mean just based on past experiences (AP: yes) That's not what happened this time. Appellant: It happened this time also. When you call it rings out or just goes, the line goes dead.

(There is a brief deviation from this line of questioning when the Judge asks her where she went to school and whether it was part time or full time.)

Judge: the uh, appointment notice, um (pause) gives you a phone number to call, specifically to your worker, that number. Appellant: Right but he's, he's not my worker. So I didn't even see him the next time I came in. Judge: But regardless that's the number they tell you to contact (AP: okay) you know and it's assigned to an aide, a worker or an aide, that's the number they are telling you to contact if you are not able to make the appointment or unable to get the documents by the due date (AP: okay). Any other questions Mr. B [agency representative]?

Throughout this dialogue the appellant attempts to shift the blame to the agency, but the judge continually thwarts her. When the appellant offers facts suggesting the agency scheduled her appointment when they knew she could not be there (`I was in school that whole time', `I gave them the letter'), the judge does not ask open-ended questions to develop this narrative. Instead, she refocuses the dialogue back on the appellant's behaviour: `That's all good and well but once they give you an appointment notice they are expecting something from you.' She follows this with a series of accusatory statements and questions: `I don't know why you wouldn't pick up the phone to try and contact them. Why wouldn't you do something like that? Why wouldn't you follow through?'

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The appellant, in response, again tries to shift the blame explaining `When I called they messed up . . . the phone keeps ringing or just closes down.' The judge first discounts this by substituting her own interpretation of what the appellant has said, telling her `You mean just based on past experiences. That's not what happened this time.' When the appellant corrects her, telling her `it happened this time also. When you call it rings out or it just goes, the line goes dead' the judge responds by bolstering her earlier accusation that she could have called by noting that the agency notice to the appellant contained a phone number. When the appellant explains that the number listed on the notice is not her caseworker, the judge tells her `but regardless that's the number they tell you to contact.' The judge then ends her questioning by turning to the agency and asking if they have any questions, further marginalizing the appellant by shifting control back to the agency representative.

Through her questioning, the judge positions herself as an institutional enforcer of bureaucratically prescribed procedures, in this case for obtaining documents from recipients. By expressing disbelief and incredulity towards appellant's allegations of arbitrarily scheduled appointments or poor com- munication systems, the judge positions the appellant as an institutional outsider without the authority or credibility to challenge agency practices. By dismissing the appellant's attempt to construct the agency as blame- worthy, the judge reinforces the asymmetrical balance of power between the agency and recipients. She prevents the appellant from fully developing a legally relevant counter-narrative that would have weighed the appellant's responsibility to contact the agency against the agency's responsibility to maintain working communication systems and, further, to avoid scheduling appointments that conflicted with appellant's other obligations and which the agency was aware of.

In contrast, in the Miller case the judge solicits narratives that go beyond bureaucratically scripted version of events and sanctioned notions of proof. Miller involved an appellant who claimed her and her children's sickness prevented her from attending a work assessment appointment. At the begin- ning of the hearing, the appellant admits that she does not have documenta- tion from her physician verifying the illness. Rather than replicating the agency's demand for a physician's note, the judge elicits a detailed story of the appellant's visit to the doctor with her family:

Judge: I want to ask a couple of questions, if I may, for starters. With the kids, let's start with that. Did you take them to a doctor? Appellant: I took them to the doctor, uh, before the appointment date. So, Judge: When did you? Appellant: Uh, that was a Saturday. I think I took them that Thursday because they were complaining about stomach and, you know, the whole swine flu thing. I was just, you know, very concerned about that. Agency: So, the condition got worse? Appellant: No. It didn't get worse. I just took `em to the doctor as soon (inaudible) about,

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Judge: What's the doctor's name? Appellant; Uh, Dr. V_______ Judge: Okay. And, what did Dr. V_____ give them or what did he say? Appellant: She said uh, just to treat, to treat it, this is before they were sick with uh, you know, stomach and everything, she said to treat it like a regular cold. You know, (inaudible) 'cause, Judge: She didn't prescribe any medication? Appellant: She didn't give 'em, she told me to give 'em like Motrin and, you know, whatever. Judge: Okay. Appellant: Uh, she advised me not to take them to the hospital because it's not sick, you know, only to take them if their condition gets worse, because if they're not sick with that, takin' them to the hospital will put them at risk of getting sick. Judge: And, by Monday, you had it, you said, correct? Appellant: Yes, by Monday I was sick, sick with my stomach. I was throwing up. I was not feeling well.

The judge follows the conventional sequence for eliciting testimony for assessing credibility, including soliciting details about the persons involved and the events that transpired. In contrast to the Jones cases, instead of thwarting the appellant's testimony, or attempting to contradict it, he allows the appellant to fully narrate the events. He signals ± through the use of the confirming `okay' ± he has heard her and asks questions that draw out additional details (`she didn't prescribe any medication?) and which indicates that he is listening closely (`And, by Monday, you had it, you said, correct?').

Unlike the Jones cases, the judge also assists the appellant in developing a narrative of an unresponsive agency. In the beginning of the hearing the appellant had explained that she went to the agency on a Tuesday, the day after her appointment, when she was no longer ill to explain what had happened, but was rebuffed. Towards the end of the hearing, the judge returns to this earlier testimony and asks the appellant to elaborate:

Judge: Okay. And then, on Tuesday, what was the conver, Appellant: On that following, Judge: You went down there on Tuesday? Appellant: Right. I went down. Judge: What was the conversation held then? Appellant: Uh, I showed the man, it was a man, I showed him my appointment letter. I said, you know, they had an appointment, that we were sick, you know, I wanted to see if I could do anything about it today. He said there's nothing they could do about it. Judge: Who was he? Was he a guard? Was he a receptionist? Appellant: He didn't give me a name. He was a receptionist. He didn't give me a name. Uh, he said there was nothing they could do about it, that they were gonna close my case because I didn't come to the appointment. Judge: Did you like get anything stamped while you were there? [she indicates no] Okay. Keep this in mind, you have to understand a couple of things for future reference. What you just told me now is enough, for what I need to know. Whenever you do go there, keep in mind that it's good to get them to

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stamp something to show that you were there just in case you something like where they say you didn't. Alrighty. But, for, you've got to be your own detective, in other words, try and do your own cover work, because they're gonna drop the ball half the time, even if you showed up there and forget to put down, `Oh, yeah. She was here and I had to turn her away.' Appellant: Okay. Judge: Keep that in, in mind.

The judge's recall of the appellant's earlier testimony that she had gone to the agency on a Tuesday indicates he had been listening and was now inviting her to expand her narrative. The overlapping dialogue of the first few lines demonstrate conversational congruence and cooperation as together they reaffirm the day was a Tuesday. Her willingness to interrupt him during this dialogue indicates a more co-equal conversation rather than one of asymmetrical power, despite his position as a judge. When he asks if she has any documentary proof of her visit to the agency (that is, a document time-stamped by the agency), her negative response does not prompt disbelief. His unsolicited advice `to keep in mind that it's a good idea to get them to stamp that you were there' is said in recognition of agency error, not official infallibility. As the judge explains, `they're going to drop the ball half the time even if you showed up there and forgot to put down, `̀ oh yeah, she was here and I had to turn her away''.'

Thus, unlike the Jones case, the judge positions himself as a critic of the agency, not as an enforcer of its rules. This invites a more participatory dialogue that positions the appellant as a credible source of information about institutional interactions rather than an outsider. In contrast to the condescending behaviour of Judge Davis, the judge informs the appellant of agency procedures in a way that empowers her. His willingness to criticize the agency and acknowledge its tendency to make mistakes is also a challenge to its dominant status within the hierarchy of welfare relationships.

The Miller and Jones case represent the two divergent approaches found in the larger data set of hearings. The bureaucratic approach was charac- terized by a limited view of acceptable proof, and a duplication of the agency's demands. Rules were applied mechanically, as is often the case on the front lines, with little room for a different interpretation based on individual circumstances and capabilities. The focus was on the appellant's missteps, not the agency's. The adjudicatory approach was characterized by more flexibility and attention to individual details. Alternative narratives were invited, with judges assisting in their development. The range of acceptable proof was also wider, thus expanding what was acceptable on the front lines. The agency's actions were also scrutinized more closely.

2. Independent adjudicator or bureaucratic agent?

The Miller and Jones case represent two very different approaches to judging. In Jones, the judge took on the trappings of a bureaucrat, acting as if

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her primary task was to ensure compliance with the rules, while positioning the appellant as an outsider and the agency's version of events as the preferred one. In contrast, in the Miller case the judge engaged in the more traditional judicial role envisioned by Kelly, scrutinizing bureaucratic practices and engaging in a more rigorous form of fact-finding, including providing an opportunity for the appellant to present her side of the story.

As previous research has demonstrated, workers within bureaucracies adapt their behaviours to the conditions of the bureaucracy and the demands of their jobs.41 Work behaviours are shaped by organizational stresses and strains, including high caseloads and low resources. Workers do what is practical to do, what they have time to do, and what they are incentivized to do.42 Workers, though, are not identical in their responses to the organiza- tional environment. They bring with them `personal experiences, social beliefs, and their cumulative understanding of the clients and the institution', all of which shape how they operationalize their tasks.43 As Maynard-Moody and Musheno have demonstrated, these beliefs are not set aside as workers apply laws, regulations, and administrative procedures. Instead, workers seek `cultural abidance' as well as legal abidance, making judgements about people based on `their perceived identities and moral character' and which affect the resources and assistance citizens receive.44

Judgements about people often involve social stereotyping, which is an unavoidable fact of life, including organizational life. Underlying the divergent approaches found in this study were a distinctive sets of beliefs, practices, and styles that animated each judge's work. Judges created a framework for engaging in the tasks of judging that was drawn from the personal, including beliefs and assumptions about the types of people who rely on welfare, and the professional, including the repertoire of legal practices and procedures that govern the adjudication of disputes. This legal tool kit proved fairly elastic, with judges appearing to shape it to conform more closely to their personal beliefs and social assumptions.

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41 M. Lipsky, Street-level Bureaucracy: Dilemmas of the Individual in Public Service (1980); E. Brodkin, `Inside the Welfare Contract: Discretion and Accountability in State Welfare Administration' (1997) 71 Social Services Rev. 1; J.R. Sandfort, `Moving Beyond Discretion and Outcomes: Examining Public Management from the Front Lines of the Welfare System' (2000) 10 J. of Public Administration and Theory 729.

42 Brodkin, id. 43 C. Watkins-Hayes, The New Welfare Bureaucrats: Entanglements of Race, Class, and

Policy Reform (2009) 56. 44 S. Maynard-Moody and M. Musheno, Cops, Teachers, Counselors: Stories from the

Front Lines of Public Service (2003) 4.

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(a) Social stereotypes and their consequences in the hearing room

In contrast to adjudicators, bureaucratic judges viewed welfare recipients more negatively. While no judge admitted directly to disliking welfare recipients, distaste was communicated in other ways. Their depictions of appellants paralleled common stereotypes of welfare recipients as threaten- ing and dangerous individuals intent on defrauding the system. One judge, for example, made derogatory and stereotypical comments about appellants, shared with agency representatives in between hearings, such as using the language of criminality to describe recipients as `repeat offenders' who continually `infracted' or broke the rules, or as someone `you wouldn't want to babysit your kids'. This judge also depicted the system as riddled with `fraud and waste', with recipients having an incentive to lie to obtain benefits or `game the system'. Other judges depicted appellants as emotional and quick to anger, and hence requiring strategies to keep things `calm' and `keep the drama out'. As one judge explained:

I keep it professional because otherwise it is `set up to brawl' and people may attack the agency representatives. In more formal courts, it's more well behaved, like a church. Our clientele are on the edge.

That judges differed on their views of the `clientele' was acknowledged by several of the judges, who described a division among the judges between those who were sympathetic to appellants and those who weren't. According to one judge, many of the judges were `bureaucratic functionaries' who were biased against appellants. Another judge echoed this assessment, explaining that judges have limited contact with welfare recipients and `find them hard to relate to'. He further explained that `it was very difficult for judges to view these people neutrally or sympathetically especially since they came from such a different background than the judges.' Consequently, he explained they tended to rule against them. On the other side were self- described `social workers who `̀ want to help people''.' This group, as one judge perceived it, was ostracized by the bureaucrats, who viewed them as a `weakling' or a `wuss' for being too `nice' to appellants.

These different perceptions of appellants seeped into the hearing room. Judges with a bureaucratic approach were more likely to admonish or lecture appellants for their perceived personal failings or irresponsible behaviour, as described in the Jones hearing. In another particular harsh example of this approach, a bureaucratic judge chastised an appellant who had allegedly failed to submit documents to the agency, by saying:

What did you do? You had a responsibility. You decided to do nothing . . . Why are you fighting? You come here with no documents . . . Why would you want a fair hearing?

Adjudicators, while exhibiting some of the paternalism displayed in the Jones hearing, presided with a softer hand. They spoke of `educating' appellants, and making sure they understood how to navigate the welfare

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system, as Judge Wilson did in the Miller case. They distinguished them- selves from the `stricter' judges who `rushed' through hearings. They described wanting to create an atmosphere where appellants felt `com- fortable' talking. As one judge explained, who described herself as in the `social work' camp, `I want to make sure the appellant is relaxed and understands they will be heard. I try to keep it simple. I don't like to talk over them.' Another judge described techniques, such as allowing appellants to vent their frustration with the agency, that `ease appellants' anxiety'. Another judge described how he made it easier for appellants to talk at hearings. As he explained, while some judges are `strict' he was willing to deviate from the procedural order (of who spoke when) because it was more important that appellants feel `comfortable.' Letting them speak out of order, he explained, makes it less likely they will `lose their train of thought'. In short, adjudicators focused on `comfort' and bureaucrats on `control'.

(b) Shaping the legal tool kit

Bureaucratic and adjudicator judges also differed in how they handled the substantive aspects of disputes, including how they applied evidentiary rules and the law. Hearings are more informal than court proceedings, and the rules for soliciting evidence and testimony are designed, in part, to accom- modate appellants' disadvantages in the legal arena. Under the adversarial system, judges are viewed as having a passive role. They are responsible for adjudicating the facts not gathering them. However, as noted above the regulations allowed judges to assist appellants in developing their testimony. Documentary evidence, the sine qua non of both the bureaucracies and legal systems, and often difficult for appellants to obtain, was also handled some- what differently. As one judge explained, while `paper talks', they were encouraged to rely on testimonial evidence. An internal administrative policy, issued by the Principal Hearing Officer, specifically provided that the `the lack of documentary evidence is not per se a basis for finding the appellant's testimony incredible.'

Judges with a bureaucratic approach, however, were less likely to help appellants develop their testimony and more likely to require documentary proof. The request for the latter often occurred in the context of work-rule cases, where such judges were more likely to insist on documentary evidence from a physician when appellants claimed illness prevented their attendance at a mandated appointment, rather than eliciting a detailed narrative, as in the Miller case above. In an illustrative case, an appellant provided a lengthy and detailed description of her problems during a high-risk pregnancy which resulted in the premature birth of her child and which she asserted prevented her from attending her work appointment. The judge responded by telling her `he believed her', but not to come to a hearing without written proof from a physician she was incapacitated the date of her appointment. Since a substantial portion of the fair-hearing system is devoted to adjudicating

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disputes about the work rules, the preference for a physician's note over testimony was a contentious point among the judges, emblematic of the split between bureaucrats and adjudicators.

Adjudicators and bureaucrats also differed in how strictly to apply the law. While both adjudicators and bureaucrats expressed allegiance to the law, as would be expected among legal professionals, adjudicators viewed the law as more flexible and elastic. Some admitted to looking for ways to decide in appellants' favour. As one judge explained, he looked for ways to rule for appellants, although he qualified this by stating that `rules can be bent to a degree but not outrageously.' Another judge explained that agency files contained so many defects that there were `legitimate' ways to find for appellants. As he further explained, people often get `screwed by the system' and while `technically' they may have erred, it `really wasn't their fault'. Like `Supreme Court judges [who] find a way to get the outcome they want', he explained, there were valid ways to rule for appellants. However, this same judge also emphasized that he let `the chips fall where they may' when assessing the evidence and making decisions.

Other adjudicators also exercised a similar restraint, finding ways to ameliorate the harshest consequence of the law while still following the rules. An illustrative example is a judge who criticized a rule requiring recipients to comply with the work rules while earning a four-year college degree because it `penalizes people for being in college', but who none- theless held against appellants sanctioned for missing work assignments because they were in school at the time. However, he included in his decisions a directive to the agency to find a work assignment close to the school, or alternatively to provide sufficient time in between school and the work assignment for appellants to get to both. Another judge dealt with the agency's multiple demands for documents not by altering the request, because, as she explained, that would not be `fair to the agency', but by urging the agency to give appellants additional time to secure the documents.

While adjudicators sometimes looked for ways to apply the law in ways that favoured the appellants, bureaucratic judges were more likely to avoid applying the law harshly to the agency. For example, as exemplified by the Jones case, they were less likely to scrutinize agency practices that may have made it difficult for appellants to comply with agency demands. This sometimes led to disagreements with supervisors,45 who were perceived by several of the judges as falling in the `social work' camp. As one judge explained, supervisors acted as a `check against the unsympathetic judges', `point[ing] out mistakes and telling the judge `̀ when in doubt reverse the

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45 Except for a small number of judges who `self-issued' decisions, the judges' decisions were issued in the name of their supervisors. However, because of the large number of decisions, it was difficult for supervisors to review every single decision. When disagreements between supervisors and judges did occur, they would often discuss the case to reconcile their opposing views.

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agency''.' According to this judge, supervisors were more sceptical of the agency than some of the judges, for example, warning judges not to always trust the agency's records.

DISCUSSION

The widely divergent judicial approaches found in this study are, in part, a function of the highly discretionary nature of judging. Such variations are inevitable and well documented in the scholarly literature. Conley and O' Barr documented five styles of judging in their study of small claims court, including two ± the `proceduralists' who emphasize process over substance and the `lawmakers' who focus on fairness over rigid rule abidance ± that roughly parallel the different approaches found in this study.46 In short, among any group of judges one is likely to find differences.

The variations found in this study, however, likely signify more than a difference in judicial approach but, rather, shed light on the forces shaping administrative adjudication and, in particular, adjudication involving highly stigmatized populations, such as welfare recipients. The division of the judges into two camps ± the social workers and the bureaucrats ± parallel, in part, the competing models of service delivery within welfare bureaucracies, specifically what Simon refers to as the social work versus legal model, with the former emphasizing an individualized and contextual approach and the latter the uniform adherence to a set of rules.47 Watkins-Hayes more recently found that occupational identities within welfare bureaucracies are shaped by both approaches, describing a work force encompassing both `social workers' and `efficiency engineers'.48 Efficiency engineers, consistent with the legal model, view their role as regulating access to benefits by ensuring compliance with the rules. They seek to enforce the rules with speed and efficiency, which leaves little room for flexibility or nuance. In contrast, social workers tailor those rules to fit individual needs. Unlike the rule- bound efficiency engineers, they are more likely to resist the rules if they interfere with efforts to help. While both types of workers exist within the same welfare bureaucracy, efficiency engineers usually dominate.49

Viewed in this context, it is not surprising that both types would also populate the fair-hearing system. However, the distinction between social workers and efficiency engineers provides only a partial explanation of the judges' choices. An overly bureaucratic approach is viewed primarily as a

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46 Conley and O'Barr, op. cit., n. 29. 47 Simon, op. cit., n. 1. 48 Watkins-Hayes, op. cit., n. 43. 49 M.J. Bane and D.T. Ellwood, Welfare Realities: From Rhetoric to Reform (1994);

Brodkin, op. cit., n. 41; Y. Hasenfeld, `Organizational Forms as Moral Practices: The Case of Welfare Departments' (2000) 74 Social Service Rev. 329.

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consequence of low status and low skills, coupled with a work environment that stresses uniformity and efficiency, and which lead to the mechanization of work.50Administrative law judges have none of these infirmities; they are highly skilled professionals near the top of the bureaucratic hierarchy with the power to scrutinize workers' decisions. Yet the bureaucratic judges chose to de-emphasize their legal skills and professional training and bureaucratize their work, despite supervisors who urged otherwise. Encouraged to cast a critical eye on the agency, they chose the more rigid path of adopting the norms and practices of the front-line workers whose decisions they were reviewing.

Arguably, this choice was more in sync than the adjudicators' approach with the goals and purposes underlying welfare reform. Welfare law, in the United States and elsewhere, has increasingly relied on stringent rules as a condition of assistance. Bureaucratic judges may simply be aligning their practices with these changes, upholding a regime of rules designed to enforce personal responsibility and restrict access to welfare. This suggests that it is the adjudicators who are the outliers by attempting to stretch the limits of the legal formalism that characterizes both welfare law and its application on the front lines. However, such an interpretation extinguishes the difference between administration and adjudication, relegating the latter to a supporting role within the bureaucracy, rather than a bulwark against the errors such a regime may generate.

It also does not fully explain why judges choose one approach over another. The findings suggest that the choice is rooted, at least in part, in an individual judge's beliefs and attitudes towards welfare recipients. As the judges themselves explained, some judges evidenced distaste for welfare recipients, while others did not. As Maynard-Moody and Musheno observed in their study of state actors working in schools, social service agencies, and law enforce- ment, moral judgements are inherently a part of front-line work, and often result in differential treatment of clients based on a worker's individualized assessment of their deservingness.51 However, unlike much of the front-line interactions described by Maynard-Moody and Musheno, the relationship between judges and appellants is not ongoing. Encounters are episodic, brief, and narrowly focused.52 The first picture the judge gets of the appellant is through the agency's eyes. Focused on the facts and the law, they have little time to form beliefs about the character of particular welfare recipients.

A quicker and simpler device is to lump most, if not all, appellants into the disparaged category of welfare recipient. The emphasis within neoliberal

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50 Brodkin, id.; Sandfort, op. cit., n. 41; Z.W. Oberfield, `Rule Following and Discretion at Government's Frontlines: Continuity and Change During Organizational Socialization' (2010) 20 J. of Public Administration Research and Theory 735.

51 Maynard-Moody and Musheno, op. cit., n. 44. 52 Hearings ranged in time from a few minutes to as long as one hour, although the latter

were very rare. Most hearings took less than 20 minutes to complete.

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societies of personal responsibility over public responsibility means that welfare recipients are constructed as undeserving and viewed with suspicion.53 Hence, it is not surprising that this view would permeate the higher echelons of the bureaucracy, including judges, and even at the expense of their judicial role. Although the most proximate organizational cues from the judges' supervisors sent a different message, the cues of the larger welfare bureaucracy, and the societal messages that reinforce it, proved more powerful, especially among judges whose beliefs and attitudes appeared congruent with these messages.

Viewing citizens as responsible for their plight and hence unworthy of aid may also ease a judge's burden in other ways. Hearings are also often the last hope for citizens trying to secure or retain life-sustaining benefits. While hearings are couched in the language of law and bureaucracy, they are undeniably about unsatisfied human suffering. Judges, though, are often constrained by the harshness of welfare law in the United States and elsewhere, which is increasingly ungenerous towards welfare recipients and punitive in its intent and application. Even if the laws were more generous, they would still be insufficient to fully address the human misery judges encounter in their day-to-day work. Propelled by the `need to preserve some meaning and value for their work', judges may shield themselves from the moral unpleasantness of their work by viewing welfare recipients as undeserving of the aid they are denying them.54

A bureaucratized approach may also allow judges to distance themselves from the highly tainted group of welfare recipients, whose low social status may `rub off' on those professionals who serve them. Among welfare recipients, stereotyping fellow recipients is a common tactic for managing stigma because it allows individuals to reject negative stereotypes as inapplicable to them, and hence extend the social distance between them- selves and other recipients.55 While not a member of the stigmatized group, judges may be vulnerable to what Goffman called `courtesy', or a form of associative stigma by virtue of an individual's connection to a highly stigmatized group.56 One way of managing this stigma is to double down on the stereotypes of the stigmatized group and treat them very harshly, in essence disowning the group casting a negative shadow on their professional

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53 Gilliom, op. cit., n. 6; F. Munger, `Dependency by Law: Welfare and Identity in the Lives of Poor Women' in Lives in the Law, eds. A. Sarat, L. Douglas, and M.M. Umphrey (2002) 83. J. Handler and Y. Hasenfeld, Blame Welfare: Ignore Poverty and Inequality (2007).

54 Maynard-Moody and Musheno, op. cit., n. 44, p. 12. 55 S. Briar, `Welfare from Below: Recipients' Views of the Public Welfare System'

(2005) 54 California Law Rev. 370±85; J. Soss, `Making Clients and Citizens: Welfare Policy as a Source of Status, Belief and Action in Deserving and Entitled: Social Constructions and Public Policy, eds. A.L. Schneider and H.M. Ingram (2005) 291.

56 E. Goffman, Stigma (1963).

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status. Viewing judges who were `too nice' to appellants as `weak' allowed the bureaucratic judges to further differentiate and distance them from the stigmatized group, and those judges who refused, at least overtly, to stigmatize and stereotype appellants.

In contrast, rather than distancing themselves from the suspect group of welfare recipients, adjudicators displayed an almost hyper-vigilance to their comfort and ease in the hearing room. They also sometimes operated on the edge of bias by seeking `legitimate' ways to rule for appellants. Consistent with the ingrained legal principle that all ± the deserving and undeserving ± are entitled to their day in court, they focused on the fairness of the process, creating a space where appellants could speak. In essence, they used the humanizing aspects of due process, including an opportunity to be heard and to be treated with dignity and respect, as a salve and substitute for the limits of the law and its insufficiency in the face of dire need. While arguably such an approach threatened the judicial value of neutrality, it also helped level the inherent power disparities between the agency and the appellants, and was more likely to lead to the uncovering of agency mistakes, the stated purpose of administrative hearings.

The existence of such judges within the system quells, at least in part, a concern common to all administrative adjudication systems both within and outside the United States: that adjudicators within administrative agencies will be `captured by the agency' and `adopt [its] world view', thus com- promising their neutrality.57 While performing a different function from other bureaucratic actors, their daily interactions with these actors continually expose them to the bureaucracy's norms and practices. The findings of this study suggest that even within the most cramped and rigid of welfare bureaucracies this is not inevitable. For while all of the judges faced similar demands, including high caseloads, insufficient resources, and agency practices that treated recipients as undeserving and which emphasized procedural compliance over substantive need, the adjudicators constructed a different professional identity and view of welfare recipients from both the bureaucratic judges and other actors within the welfare agency. At times they even overstepped their role, playing with the law in ways that were arguably out of sync with its intended purposes. This suggests that while structural choices and dominant ideologies may shape the choices judges operating within administrative systems make, judges can, and do, take a different path.

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57 P. Bernard, `The Administrative Law Judge as a Bridge between Law and Culture' (2003) 23 J. of the National Association of Administrative Law Judges 1, at 17. To guard against `capture', administrative procedure acts in the United States typically contain provisions requiring ALJ independence, such as prohibiting them from participating or advising in the decisions under review, a practice followed within the subject state. For a discussion of the difficulty of reviewers remaining neutral during internal review processes within administrative agencies outside of the United States, see D.J. Galligan and D. James, Due Process and Fair Procedures: A Study of Administrative Procedures (1996).

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LIMITATIONS AND FUTURE RESEARCH

There are several limitations to this study. The methodology and sample size do not permit conclusions as to which approach ± bureaucrats or adjudicators ± dominated. While several judges perceived that so-called social workers were in the minority, the study's sample size of seventeen judges (out of approximately 85 judges) is too small to verify this claim. Sample selection may also have been affected by the ability of judges to opt out of the observations and interviews, and the ability of the gatekeepers, the Principal Hearing Officer, to control, to some extent, which judges were observed. Race, gender, and other personal characteristics are also not addressed in this study, although they would be expected to influence a judge's approach.58 Of the seventeen judges observed in both counties, five were female, and twelve male. Two out of the seventeen judges were people of colour. The judges came from a wide range of legal backgrounds, including private practice, state or local law enforcement, or public interest law. There was no discernible pattern based on these characteristics, and larger sample sizes and a different methodological approach are needed to determine the effect of such characteristics.

Categorizing a judge as using one approach over another also presents some methodological challenges. Actors do not `exhibit[s] one professional identity at all times'.59 Judges may vary their behaviour from case to case.60

Thus, while this study establishes the existence of the two very different approaches described herein, and further, while one approach typically predominated in any given judge, further research is needed, using a more diverse range of cases and a different methodology, to examine whether these different approaches are associated with different types of appellants or hearing issues, both among a single judge and across judges.

Finally, this study suggests that judges chose the approach most consistent with their own perceptions and beliefs about welfare recipients, but does not address whether they held those beliefs before they became a judge, or acquired them on the job or a combination of both. In other words, it does not answer the question of whether bureaucratic or adjudicator judges are born or made, and the precise process by which pre-existing beliefs and organizational norms and socialization experiences combine to produce two very different types of judges within the same organization. Further research is needed to explore this question.

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58 Watkins-Hayes, op. cit., n. 43. 59 id., p. 113. 60 K. Mack and S.R. Anleu, `Performing Impartiality: Demeanor and Legitimacy'

(2010) 35 Law & Social Inquiry 137.

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