Professor Komesar critiques the proposals of Richard Stewart and Joel Handler to minimize formal lawyering and confrontation in various administrative settings. While admitting that litigation and similar formal processes are highly imperfect, Professor Komesar states that formal processes may be the least imperfect alternative when the regulator and regulated do not represent all of society's interests, or when the parties involved in due process hearings do not understand the intricacies of the legal process. In the regulator-regulated context, for example, the vast potential for non-illicit agency capture makes it likely that a third-party policeman is needed, even though the use of this policeman is costly. Similarly, the complexity of due process issues and the potentially atypical nature of Handler's parents of handicapped children make it likely that some amount of formal lawyering may be needed in due process hearings.
