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The Basic Proposed Legislative Change-
The Administrative Court

The various proposals which have been made for the establishment of trade, tax, labor and other courts, upon analysis, have been shown to be aimed at not only changing the form of regulation but changing the pattern and the effectiveness of regulation itself. They are actually, and must be recognized as, an attack upon the administrative process.

These attacks are far from novel.

You are familiar with the fact that 70 years ago, when the question of the I. C. C. was being debated in Congress, the then nine-year-old infant ABA registered strong opposition on the ground that the proposal did violence to legal tradition. The opposition has been described as follows:

"The assault that it [the I. C. C. Act] was unconstitutional for the reasons laid down by the able Senator from Utah [Mr. Sutherland] as to Section 5, and the able Senator from Connecticut [Mr. Brandegee] as to the general purpose of this similar bill was led by Senator Evarts, of New York, accredited to be a distinguished lawyer and head of the American bar, former Secretary of State. So confirmed was Senator Evarts that it was not in the power of the Government to vest this form of inquisition-to use the words of the able Senator from Utah-within an administrative body, that he denounced the act as being a reflection upon the intelligence of this body. Not only would he not support it, but at home, before the bar association of the State of New York, he gave the passage of the act as evidence of a decadence of wisdom on the part of the Senate.

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Senator Lewis, who thus spoke in 1914, during debate upon the proposal to create the second great regulatory agency, the Federal Trade Commission, then went on to say:

"We saw the Supreme Court of the United States, however, overrule the able Senator from New York, the head of the American Bar. We saw that court pause and consider what the American people needed rather than what the distinguished minds of lawyers demanded. We saw the court listen to the needs of the country in order to give relief to its people, rather than that which merely prescribed distinctive lines of demarcation in construction which would give justification to refined distinction.” 1

Typical of the extreme viewpoint of some lawyers toward the administrative process is the following statement made by Mr. E. F.

1 Statement of Senator Lewis, 51 Cong. Rec. 12925-6 (1914).

Woodle, speaking as President of the Cuyahoga (Cleveland) Bar Asso-ciation :

"I have no time, certainly, to discuss the enormous increase in the number of these agencies, nor the astonishing acquiescence in their power and authority by many of our courts. . . . It is enough to say that the administration of justice in this country, as we have known it in our time and as Americans have known it since this country was founded, cannot continue if the numerous boards, bureaus and administrative agencies existing today continue to flourish.

"We cannot have, in this country, two systems of dispensing justice-one administered, as it has been for centuries, impartially equally to the rich and the poor, the black and the white, the weak and the powerful, safeguarded by restrictions and limitations and privileges which have been found to be wise and necessary through centuries of experience, and another system administered largely in disregard of our principles of jurisprudence, largely in disregard of the limitations, restrictions and privileges which our courts have found it wise and necessary to observe, administered by clerks and temporary appointees not responsible to the people and adjudicating personal and property rights without control by any courts."2

One might say in passing, as to Mr. Woodle's belief that justice is administered "equally to the rich and the poor, the black and the white, the weak and the powerful," that this is, and certainly must continue to be, the optimum goal of both the courts and the administrative agencies. However, recall Anatole France's famous thrust: "The law, in its magnificent equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

It is natural and understandable, I think, for lawyers not accustomed to practice before the Federal administrative agencies, to view with suspicion the administrative process. This is particularly so with respect to those characteristics of the process which vary from traditional courtroom practice. All of us tend to fear the unknown. And lawyers, due to their accustomed reliance upon precedent as a necessary tool of the profession, tend, more than most, to traditionalism. This is equally true of lawyers employed by the administrative agencies. It is thus not surprising that Shakespeare had one of his characters, Dick the Butcher, say, "The first thing we do, let's kill all the lawyers." 8

Most of this criticism basically has consisted of observing the differences between the courts and administrative agencies, followed by condemnation of the agencies simply because differences do exist. These critics should remember that trial by fire and combat gave way slowly

228 J. Am. Jud. Soc. 118-119 (1944).

3 King Henry VI, Pt. 2, Act IV, Sc. 2, Line 86.

to the more logical and socially acceptable process of proof in the courtroom. I note in passing that from 1802 to 1912 the use of oral testimony in equity proceedings was virtually unknown in the Federal courts, without any suggestion that this emulation of the English Chancery procedure was violative of due process.

It is so easy to generalize by concluding that because some administrators misbehave, or are arbitrary or are stupid, all administrators are so. Yet one does not condemn the whole judiciary every time a Martin Manton goes to jail or a trial court judge is reversed on appeal because of his errors or misconduct at the trial of a case.1

The late Judge John J. Parker said this about the administrative process:

"To my mind it is utterly futile to inveigh against the growth of these [administrative] tribunals. That growth has been perfectly natural. Under the conditions of modern life it is absolutely necessary that the state regulate economic life. Laissez faire is gone. The conflict is not between laissez faire and regulation, but between regulation and some form of state socialism. If socialism is to be avoided, the state must regulate economic life. . . . And, if government is to exercise the control over economic life essential to the preservation of free enterprise, some such form of administrative agency is absolutely necessary to the proper and efficient exercise of governmental power. The problem is, not to prevent their growth, but to preserve in their processes the fundamental principles of freedom which have come down to us from our fathers." 5

Let us inquire briefly into the background of the administrative process, which in 1952 the late Justice Jackson described as "the most significant legal trend of the last century" and "an indispensable adjunct to modern government." "

The Administrative Process is a Product of Necessity

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The administrative process has become the most significant legal trend of the century because it has filled and continues to fill a basic need in our democratic society. The Supreme Court has aptly described this development as 'a response to the felt need" for a new instrument of government to overcome the inadequacy of traditional modes of government. Administrative law has sprung not from a sterile theory of government but from the pragmatic demands of a dynamic society; as Dean Landis has said, "the insistence upon the compartmentalization of power along triadic lines gave way... to the exigencies of governance."8 "No one was thinking," Professor Davis has added, "in terms of judiciary versus bureaucracy, capitalism versus socialism, or laissez faire

4 I am indebted to Professor Walter Gelhorn and Clark Byse, for this reasoning and that in the preceding paragraph.

5 27 A. B. A. J. 75.

6 Dissenting in F. T. C. v. Ruberoid, 343 U. S. 470, 487 and 482 (1952).
7F. C. C. v. Pottsville Broadcasting Co., 309 U. S. 134, 142 (1940).
8 Landis, The Administrative Process 2 (1938).

versus governmental interference. The early agencies were created because practical men were seeking practical answers to immediate problems.

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The process has been directed toward fractional parts of our society rather than toward the whole. Administrative agencies tend to particularize commercial activities-radio and television, shipping, telephones and telegraphs, banking, stockyards, commodity exchanges, security exchanges, utilities, railroads, buses and trucking; to matters embracing many activities such as problems of unfair competition, establishment of minimum wages and hours in industry, adjudication of labor disputes; and to the dispensation of governmental benefits such as old age pensions, veterans' pensions, employment insurance, mailing privileges, and control of the public lands.

The common thread running through this complex of functions, and indeed the impelling rationale of all administrative agencies has been the need for specialized attention to specialize problems. Modern administrative government demands men of expertness able to devote their full energy and talents to administration. Legislatures and courts are not fully adapted to the intricate and pressing task of administration. Neither legislators nor judges possess the requisite specialized knowledge, or equally important, the time required for the solution of complex problems met daily in the fields of communication, investment, power transmission, labor relations, transportation, etc.; nor in fact do they have the desire to immerse themselves in the complexities of these activities. 10 Little wonder it is then that three out of four judges who replied to queries of a Senate Committee oppose the proposed trade court.11

This situation has forced the legislature to write laws expressing broad outlines, leaving to the administrative agency the task of filling out the details. An English court in one of the earliest administrative law cases described such a law as "a skeleton piece of legislation left to be filled up in all its substantial and material particulars by the action [of the administrative body]."'12

The judicial process has shown itself even less adequate to the task. Administration traditionally includes such disparate functions as investigating, supervising, initiating remedial action, issuing regulations, licensing, fixing rates, in other words, an array of active responsibilities.

9 Davis, Administrative Law 10 (1951).

10 Davis states: "A legislative body is at its best in determining the direction of major policy. It is ill-suited for handling masses of detail or for applying to shifting and continuing problems the ideas supplied by scientists or other professional advisors. Experience early proved the inability of Congress to prescribe detailed schedules of rates for railroads or to keep abreast of changing needs concerning the levels of import duties. Gradually our legislative bodies developed the system of legislating only the main outline of programs requiring constant attention, and leaving to the administrative agencies the tasks of working out subsidiary policies." Davis, Administrative Law 13 (1951).

11 11 for, 35 against; S. Rep. No. 128, at page 10, 85th Cong., 1st Sess. (1957). 12 Institute of Patent Agents v. Lockwood, (1894) A. C. 347, 356.

Courts are essentially passive instrumentalities. By their nature and purpose they must wait for someone else to initiate action and to summon evidence.

Judges and legislators, like all of us, are not men of unlimited capacities. They cannot be expected to embody the expert knowledge contained in an agency such as the I. C. C. which avails itself of the collective wisdom of such specialists as rate experts, locomotive engineers, reorganization specialists, experts on explosives, valuation engineers, tariff interpreters, traffic congestion experts, etc.13 The expertness of an administrative agency includes more than the heads of the agencies themselves. The entire agency, through its specialized staff and experience, is the source of administrative expertness. It is this type of expertness which not even the heads of agencies claim to possess as individuals. This type of expertness, the combined total knowledge and experience of the members and employees of the agency, is the expertness not of one but of many. No judge, however specialized or able, can lay claim to this type of expertise.1

14

Since he was this association's president in 1939 and 1940, I think you may forgive me for quoting some of my earlier remarks which the late, beloved Wilbur LaRoe, Jr. brought to the attention of the Editor of Traffic World (in a letter printed in the April 20, 1957, issue of Transportation Week) four days before he died. Mr. LaRoe liked this threepoint summary of the advantages of the administrative process:

"1. The administrative process performs functions which the courts are not geared to handle and which the courts do not desire to handle.

"2. The administrative process performs these functions because it is flexible, and the job which needs doing requires a flexibility not available to the courts.

"3. The administrative process works quickly, smoothly, and effectively in areas where the courts have demonstrated an inability to provide results quickly, smoothly, and effectively. I hasten to add that there have been notable examples of excessive delay in the administrative process, as with the courts, and that the bar should aid in elimination of such delay, as it now is doing with respect to the same problems in the courts.” 15

13 See Davis, op. cit. supra, note 19, at 13-14.

14 "We start, of course, from the premise that on a subject of transportation economics, such as this one, the [Interstate Commerce] Commission's judgment is entitled to great weight. The appraisal of cost figures is itself a task for experts, since these costs involve many estimates and assumptions and, unlike a problem in calculus, cannot be proved right or wrong. They are, indeed, only guides to judgment. Their weight and significance require expert appraisal." Justice Douglas, New York v. United States, 331 U. S. 284, 328 (1947).

15 Earl W. Kintner, debate with Ashley Sellers before 1956 Annual Meeting, Federal Bar Assn., printed in Journal of the Bar Assn. of D. C., Vol. XXIV, No. 1 at 18.

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