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onmCTIVES
Benjm:min We:rRue

1PlRAC'lrKSf/NG LAW ~NSl'lITllJTE

ABMINISTRATPll!J AGENOIES -. REVISED TO JUJ.,y W, 1949
W'l!lmllnhell Kiy tile l'rnlltlulnm Lo.'I'I IlWtItuMi &It ij7 Wfill1lWl el,'t<eo%, New "!!Ol'l! Iii, N. 11';'
Soh~~lptlolu 1jl~1l
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Copyright ]9'~6, 1949 by IPxmclisirng Law Instiwl€,
 CONTENTS
PAGlll

ADMINISTRATIVE LAW AND THE LA WY'ER'S ADMrliNIS RA RVE AGENCIES

PR,AC'fICE , __ m •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••]

ADlVlllN!STRATIVla LAW Al\ID THE LAWYJUl'S FjiUhCnCE

SCOPE OF' MONOGRAPH J
SOME CAUSES OF CONFUSION ABOUT Jahn Smith is a citizen who has been eog-elgeo ill bt1SineS5 fo;.. ~\
ADMINISTRATIVE l.A W 5 number of years. Smith has never driven an automobile, but desiria1g
Definition .of ct Administrative Law" Confusing 7 to do so, calls upon his attorney and asks wl1ether he needs a license
Definition of "Administ.rative Agency" Confusing 8 for that purpose, and if so, how he can obtain it. The attorney, havhlg
Lack of Uinderstaillding of Method of Operation 10 gone through a similar pro<tess himself, does not fed it neC~SS(l\ry to
Physical. Manifestations Confusing , 11 make a detailed investigation of the law, but tells Smith to obtain a
The Reform .of Administrative Law 12 learner's permit, take lessons in driving and apply for a driver's
license. He goes on to say that there will be an examination conducted
THE PATTERN OF THE ADMINISTRATIVE PROCESS 13 by an inspectOR", ~nd if Smith passes it satisfactorily, the lilr'i'rer's
Multitude of Types of Activities Regu!ated 14 license will issue. Smith follows these instructions and obtains tne
Variations in Agency Powers and Duties._ 15 necessary license.
Quasi-Legisla.tive and Quasi~Judidal Powers 16
Direct a.nd Indirect Government Interest... 18 Some time thereafter, Smith again comes to see his attorney. This
Administrati ve or Court Remedies 18 time he tells a story of having received inquiries from the :Federal
Trade Commission about the advertising of his merchandise, and
DamgeraUls to Over·Generalize , 20
says that in response to these inquiries he had sent specimer~sof his.
SUGGESTED TECHNIQUE FOR ADMINISTRATIVE advertising literatl.ire to the Commission. The occasion for his (;omill1g
LAW PROBLEMS 20 to a lawyer is the receipt from the Commission of a proposed stipu ..
lation. the effect of which would be Smith's admission 01 the falsity of
Investigating the Law Which an Agency Administers and
his advertising representations, and his agreement to discontinue these
fly Which the Agency is Governed 21
5ta tute , , 21 practices. Protesting tilat his advertising was trllthful, Smith seeks
advice about what to do. The nttomey examines the Jaw and the facts
Rules and Regulations of Agency 23
and advises his client not to sign the stipulation. Smith, fonawing his
CQurt and Agency Decisions, Etc 26
A.vailable Procedures , 26 attorney's advice, rejects the stipulation j whereupon he is served with
Methods of Actual Practice Within the Administrative a tormal compla.int in a proceeding before the Commission. l~.nanswer
Process .., " " " 28 is filed, and the case is set for hearing. At the hearing, presided over
by an examiner, the Commission's attorney presents evidence of the
Technique in Investigating the Law 30
alleged falsity of statements made in the advertising. Smith adduces
Know the Facts and Surrounding Circumstances " 31
his evidence. Witnesses caned by both parties are exam1ned orally and
Thorough Prepaxation Before Acting 32
are cross~exarXljl1ed by the opposing attorneys. The hearing is closed.
Personal Contact with Agency.." 33
aoa the examiner files his report, which is adverse to Smith; ·where·
Proceedings Before Agencies 3S
Written FacttJal Record ParamounL 36 upon the laUer's attorney files exceptions and asks for an argument
before the Commission. The case is thoroughly briefed by the attor ..
lUDICl AL REVIEW 37 neys for both Smith and the Commission, is argued orally, and a de-
cision is made by the Commission.
CO:\lCL.USION 39
Smith also consults his attorney abot1t the loss of a valuable ;;,:mtique

GENERAL PRACTICE
;2
table which had occurred in the course of the transportation of his
household goods from Connecticut to New York City. Altbougb the
table wa.s worth $1,SOO?the mover has offered to pay only $2.20. and
Sm.i¢h wants to institute suit, and to contest a limitation of liability set
forth in the bill of lading. The attorney, upon investigation, ascertains
tnat the mover has m Certificate from the Interstate Commerce Com~
mission, publishes a tariff of rates which includes a 11m,itatianof
lliability of teu cents a pound unl.ess a higher value is dedaredl, and
that the Interstate Commeme Commission, by a !'eleased rates ordel',
had authorized the limitation of HabUity. Since Smith had hiled to
declare a higher value and the table weighed only 22 pounds, Smith's
attorney must advise him that it would be fruitless to institute action.
Smith tells his attorney about anothc!" difficulty he encountered. In
his plant there were employees engaged in various types of work.
Smith had received a letter fl'Om :II.union stating tha.t it was :;mtnorized
to ,act as the collective barg'aining agent for all of his employees. At
the same time he had received a letter frotl.1 another union which like-
wise claimed the right to act as the collective bargaining agent :forhis
employees. He did not know whether his employees belonged to a
union, or if so, to which union they belonged. He had heard that he
must bargain coUectively, that he could alot influence his ernployees,
and perhaps that not [0 thern !)lit meet-
PI,
ing for that purpose, and he wanted advice.
It is not nt~Ce5sary to dwell at greater length on Mr. Smith's trimls
and tribulations, including his experiences with rent control on dwell-
ings, his desire to finance an expansion of his business by the issuance
of stock to the public, and the fact that he had sold merchandise to
someone in Europe who was willing to pay his bill but whose money
had been blocked dl11'ing the war.
Nor is it tlecessary to more than mentiol1 the problema brought to
Mr. Smith's att01trney by other dietil~s.Among them were the llllbor
union th?tt wanted to establish its position as a. collective bargaining
agent ror employees, the person who worked .asan employee as head
of a oook!<eeping dep,u::tment and who had received no overtil.tl~pay,
and the chap who was injured on the loading platform of a factory
and wanted to know whether he "Was entitled to workmen's compen-
sation a.nd how he got it, or whether he had an action against tlnt;
truckhilg company whose vehicle h~,d backed up to the loading pRat-
form 8ltld causted the injury. There '1iYilS an individual who wanted
1lr
ADllHl:<USTRA,1'lVE AGll1:NCllES ,.J
to collect lUllemployment insurance, and since he wOli'ked for a ~ila1Ie.·
house did not know whether he was entitled to "social security" ",\;1' rmil..
mad benefits. There was the shipper who claimed that he was o'!!er~
charged on freight and who insisted that he was not getiil.1g t.he se1'vice
or rate to which he was entitled. These are iUustrative of some of the
problems which arise in a lawyer's practice today.
The law practice described is not only that of a l}).wyeu· who is ffi
member of a large firm representing' vast industrialill'lterests O~·indus ..
tria! em.pires, but rather one tbe counterpart of which cali! be found
througno11lt the country. The circumstances mentioned. e2lch of which
represents the occasion for rendering a service and c21ming' a feG,
calm be mul~ipiied over and over again in the general nm f>£ prac~k~.
Smith m.ay be a manufacturer of g31dgets, automobiles, shoes 01: IDeo,·
motives. The various people described might be ('mploy(~e!l of com-
mon carriers, utilities, manufacturing' concerns, grocery stores, OJ!'
<lny type of economic acHvity which can come to mind. 'rbese situa-
tiOllS and problems are gri.st in the mm of a large or a SlU::lJI law
practice as it exists today.
In the illustrations given, thclI'<e is not a singh.) Ia.W suit otther tha.n
the possibility of a negHgem:e adion in lien of workmen's c0111penS1'l,-
limn, and the possibility of suing for overtime pay in tile CfAse of the
hemd bookkeeper. Neither h3S there been any referel1c~; to the lPrep~u'u
ation of. contracts or wills, ~he probate of estates. the handling of thre
ptl.l:chase or sate of real estate, or of most of the miscellany of mat ..
ters witP:! i9
What has beet~ described is the hnvyer's COllt~i(;1l:with "admi!t~istra-
tive law/' This term is used in the sense of the adual day by day
activity of the lawyer in relation to administrative agencies a.nd the
areas in which they act, as distinguished from the idefJlli~~dme~ning
that one nnds in the text books and. Hie ~'!;l)Ort!l as of
litigation. The fact is that of the thousands upon thouslJI,nds of lilMlto
ters which in iOne way or another teach the administrative agencies,
only a small proportion reach into the courts, and this small proportion
mayor may not be illustrative of the numerous problems with which
the lawyer is faced.
SCOPH~OF
Tht') limit£-.d objeltt of this monograph is to )f'ropolK: & metbod 011
:l_ppr(Sch to 21 plractkll.l problem and a habit of thiruring" which, H
4 GENERAL PRACTICE ADIIUNlS'l"RA lIVE AGENCRES 5

adopted, may ea.se the way for the practising lawyer in the field of has, on the other hand, been attacked with equal vigor, as a. "headless
administrative law.' 'fourth branch.' of the government, a haphazard deposit 'Of irrespol1si-
There will be no attempt to discuss how a concrete case can be ble agencies and uncoordinated powers .. , 'irresponsible' regula.tory
pressed into or squeezed out of a l>articulal.'statute or l'ct"111ation. commission ... areas or unaccountability"li leading' America to bureau-
Nor will the illusive and highly complex subject of judicial review be cracy.6 These controversies, however, are beyond the punriew 'Of the
treated extensively. That, however, is not to indicate that the subject present discussion. We face the fact that the agencies <exist; and
of review oi agency action is not important Or should be negleded. lawyers must accept this and be prepared to deal with administrative
For, although the primary object of a lawyer is to win his case and law 1£ tbeJY are to continue to ll.ct as counsellors to and advocates for
gain his point i.n the fIrst instance, he nevertheless will try his case at their clients.
nisi prit~s with an eye 011 the record, ill anticipation of an a.ppeal by
the unsuccessful purty, Ftuthl~nnore, it is in the cases which are t'e- S01\h1'ECAUSES OF COr-.rFUSll:ON ABOU"Jf
viewed that lawyers are given many of the guide posts in thdr deal- ADMINiS'mAl'M "!LAW
ings in the first round.2
Likewise, it is not intended to take up in this monograph questions
Th~.E:! ..J:~E~~~L
ar~~".~E~~~_~i.J?_~~~tical:.~~:1.~ni~~n.~~~~L \ ~. I'
such as whether administrative agencies arc good or bad, whether l~ty ~~~ e~:~p:_~~:!.~p~~:~f~I:.~.~~l~!n~st!·a.t~v.~ I~~~~d,. \1/ ...
Er.o.c~s~~ /
they are :a necessary development because of our complicated eco- from "the very moment an agl:l;~mlstratlve officer Issues a birth certdi~ . ",~,d~'
nomic and social system, or whether they should be encouraged or
cL1rbed by the legislatures and courts.s The administrative process has lafe;·gurJe·"ordli:eCfl:1ie 6,)llYse:nnh~lIfi'eiiitoT1Tle~'s"9J.i"'and"" .,- \
~:ate-;-bureaus7com-misSioliS:, depart'ni'erifs·; agel1des ariddivisionsregil.:· .::;:/."\\
been defcn·ded as a. pragmatic and jlexible technique which modern conducC-· ..······················· ' - I;'
government adopts to meet the felt needs of the community IInd to
in a modem and complex society, some traditional concepts of Ameri-
discharge its social and economic responsibilities to all the people.4 It
can legal and political institutions must be l'(;-examined. The theory of
ITbis monograph is written by a general practitioner for lawyers cRlgaged
a ~·)ro~u~·derstnlld
fine and sharp the way in WIL!ch
separation the administrative
of goverm.nental int-o"~~ectill~,
povvcrsprocess opera. tez (
ill the general :p.'actice 0 £ law. It is not II discussion by a speda list for spe- legisYative--~.n·crTudlaalISnot£ollowed tl1 the creation· or ·functioning
"'-~ ••."..,.....--":"f:--r _~""_~,~_ . -~~ ~_,_"_ ,_,.~"
.."."'~~.._".~,_"_ '~D"'-..._,,~.,""..
cialists.
m' who Theseeksexpert whoinIol'matioo
detailed is interestedabout
in the refinements
specific administrative
of or
agencies l)rocedurcs, law,
will .~~~ . -...••,•••---.•.."."_'·".W'" .""._-~,,~". "-" .••..•.•.•
()!.~,<i1!1ipistrative agencies wnlCh often c~~1"lbilJethe tl~J'ee major po-
find an exhaustive literature which has "dug deeply in narrow areas." (See litical fuw:tlons.----·~--·-· _ ~ - -..- " - .
ROlllUll' E. CUSHlI!!AN, TaE INDEPENDENT REaUtA'l'ORY CO:l.U,fISB!ONS (941),
p. 419.) AIHllttensive bibliography will be found in ADlliHNlSt'RAt1VE lPtloce:oURl?:, ·..·..Irth;-·~:eaae·r· is confused about d'administrative law" .01' th(~
a handbook issued in 1944 by the Co:nMERCS CLEAIlING HOTJSE, hrc.
Itac:irninistrative process," he may find some solace, albeit littlill com-
2For a gencrlll discussion of j udic:ial review, see VOM BAtJl~, FE!.'IEIl.A;~
ADMJNXS·
'l.'RATIVEL.4.w (1942) ; see (l,lso page 31, illfra. fort, in the fact that his confusion is shared by many experienced
3Tbose who are intcresed in discussions of the merits IIml utility of the men.1bers of the bar. It may not he amiss, therefore, to star.t with a.
administrative
ANGEr.s (1942); process,
POUND, are referred to works
CON'l'EMI.'ORi\.JJ.Y JUIliSTICsuch as FRANK!
TUEORY (19qO)IF and
MENADMEN-
WERE
WI'RATIV£ LAW (1942) ; .lLANDtS, TIn.: ADMINiSTRATIVE PnocEss (1938); GEL •.•• 6lPRESrDENr'S C.oMMln·Eil
OIlJ Alllm<llS'I'RATIVE MANAGEMENT (1936).
HOR.N, FrmE:RAr. AlllllINlf:'I.'RA1·[VE PRO('.EEOOWS (1941) and AD~UNISrRA'rlVE LAW 6~!.bsES, (1944) ch. IV; Pt:SEY, BIG GoW..RNM:EN·£: CAN' WI'
BUREAUCRACY
-CASES AND COMThtr:NTS (2d ed. 1941).1t may not be amiss to read BIG GOVEIU'fM CoN'IllOt IT? (1945); Smith, Administrative Law: A Threat to Cons#tutiO'i&al

l\£EI~'l.': CAN
Charles WE CON'£)!l.Ol.
E. Beard, for. a IT? (1945) of
discussion MERLOofJ. the
by some PUSEY, with implications
political a foreword by
of Governmel$t? (1944) 31 VA. L. REV. l' MINOlUl''l VIEW IN A'rroRNEY GElfY,VJ.'S
REpORl' (1941), Pl). 209~ 212; but see Fuchs, Administratif!e Determinatio!ms a1td
government throllgb administrative agencies. THE INDEPENllEN'l' REtJULA'roI1Y
COMMISSIONS (1941) by RODERT E. CUSHMAN fumishes an objective study of Personal
Schwartz, Rights in the PresePltProudlwe
An Admhlistrative Sttp,'emIJ
Ad COl$r£ (1948),
for New York 24(1949). 24 J.
hm. JL. 163;
N.Y.U~
the history, development and operation of some of the more important non-war
agencie!l. 1" Q. REv.
Review of 55-75. For a study
Administrative on adminish"ative
Adjudica.tion: Some agencies see Benjamin,
Ruellt Decisions J1I.diciai
of tile N e~'iJ
4LANDIS, TaB AlIl'.!!l:NLS'rRA'l'lVE PROCESS (1938), p. 1; GEL1l.E:ORN, ADMIN!S- York CQurt of Appeals (1948),48 COL. L. Ri!V. 1; 1946M1947 Ammal Stf/Fcey oj
Americatl Lmv (1947), 22 N. y.u. L. Q. REV. 523-920; Reich, The Admil~istrafive
ment of LAW-CASES
'rIU:.l'IVE AND COMMENTS
rile A.dministrative (2d ed. 1947)
Process 1932-.1940 (194S)p. 3; Burstein,
5 LAWYERS TJr.1! Develop-
GUILD RllVlEW P1'oced~jfe Act: Anol:ysis of its Requiremen.t as to R2t/e MaHlig (l947) 33
lIZ-1St A.B.A.],315.
6 GJENF.RAj(, PRACTICE ADMINISTRATIVE AGENCIES ;;

discussion of some of the factors which contribute tl) that perpleJrRty,
so that we may know what bathe!'s us in this field of law.
The practicing lawyer does not usually encounter difficulty with
the adm.inistrative process when the nature of his problem is obvious
and limited in scope. If a client should ask how to obtain an 3.1\ltO-
mobile driver's license. :a l<}.wyer does not think in terms of: adminis-
trative law or of the administrative process. He thinks in terms of a
statute nnder which automobile driving is regulated~ and of the
machin.ery by whkh that regu.lation is accomplished.
There is nothing tmusual or remarkable in the simple :and routine
procedure of obtaining a license to drive an automobile, C1i:Cept that
the applicant unwittingly comes face to face with the administrative
process. Yet, substantially every element or administrative law and
procedure is implicit in this seemingly imlOcuous proceeding. Many or
the virtutes and weaknesses of govei'1lment th.rough administrative
agencies are inherent hl this method adopted to provide for an adjust"
merit of the commtmity to conditions created by the invlZmtion ox
the automobile. The legislature has prescribed that this adivity be
conditioned upon a license, and that lhe issuance ox a. license itself
he conditioned upon adher;coce to stated criteria and formalities. The
legislature might have prescribed in detail the fonn of the application
to be filed and the specific tests to be applied to each individual a.p-
tior! to a workmen's compensation commission. IiI many il1s1l:ancea
there is no real consciousness that any problem of administrati.ve law
or procedure exists. Even when there is occasiorn to deal informally
with Ole representatives of. an administrative agency .• the method of
procedure seems (Iuite ordinary. Arguing a legal question with some
individual in the agency's office, or attemptRng to establish a factual
situation there, is somewhat met: the negotiation of a business trans~
~ction or the settlement of an)! cOliltroversy betweeal two private
individuals. Obtala1ing from an agency representative information
about the law and how to proceed in a specific case is like inquiring ;,,1:
the information office of a railroad how to travel to a dlistal1~ point,
or inquiring at a bank about sending money to a distant dty. A tll'ial
of a controverted c;aSt~ before an agency seems a cross between a
trial before a judge without a jury and one before arbitrators.
Yet, w~le~r.lla'V'ryers have oc(;asion to deal 'with the more recently
criiOated ageglcies or in the area of the regulatory st.atutes with 'wl]ic'h
they ~m::not familiar, an element of confusion creeps in. They begin
to think of administrative law and admil1.istratlv,e procedtllfes illS
abstractions instead of in terms of particular laws applied to spedtk
problems.
f)Ji!.lfinitit)ll$ ()f ttAdmtnifllg-a#u(J Law" (;rmf;rl,$if1!!};'

plicant. It might have provided a means by which fih1ess to drive What is an administrative agency? It is not an uncommon concep-
could be determined in a court proceeding. Instead, the New York
tion that aSlIl1il!ig!e.tiY~.l~~ ..ori~inated.~i!!U~~;re~~~9~.gL!:~e 11:1.11':;1'·:
State Legislature, for example, provided that an application be made state Comtuerce Commission-inT887, Yet, as Jo~ig~·agoas 1893; Pm·
"-~"'-'q-----'--~'-"'''---~'-~'''"'-'''->~''''''''.~'
,~,
...,.~,~".'
'~"""""""""--''''-<·''''''~''''''''->''-''''''O''';'·'''''''''·'-'"''·il'''·'''·~''·' ..-..,."." •..•
,.""~""'" ...,,.~
"upon blanks preplllred tinder the authority of t.he Commissioner"
fessor Goodnow demonstrated that the English and Amen can systems
and that "'the applicant shall furnish such proof of his fitness as the 'orTawreCognized "ab(Jdy:of<1idmm[st'j;)ti,;e-I;\v,j-iilth;;\igli·Ifwasnot
Commissioner shan in his discretion determine."'t
cTa-sSifieabY1harnaiile·~1fe-aefi~-~(n-:tS·Iu--;ction·as :.- ---- ---: ..--
Lawyefs thinking in terms of spedne problems arising under
familiar statutes, enC01J.l1ter no extraordinary difficulty in Meting the
mat~riallipon which dAey may act. The ground is familiar and their
appmaeJ:l is direct. If the question be one of taxes, there are the tax
..~~rt~the
.-:\~::7~;ti;;
and rightS:'8
indicates
determines
his f·th~"'~~bl;·~·l~:;;hi~i;'
the individual
to competence of the ·fi;~~ti~";;ganizatiol1
remedies for the vioJ.2!.tion
(tch:nlnistrative of' ~,I.
authOrities. \!i
a~dA''''1

--
laws, the regulations, and similar sources which temch them the law. i•.."

If the problem he one of workmen's compensation, they know there Under this definition, the emphas~sis on theruJ.es by whicbl legis·
..iitF;~a;~b·o~~7dT~~··th~'''ci:eaH~;;:··~f·
---
is a statute pursuant to which bendits are obtained by proper applica- ad~~~fstr.ative·agetiCiesmn(r Hie-
-.d~l;gat1;11·or-~owel~
- -""-"->"'~~'~-""~"'"»-'''' >--theR~r;::-·a;;:[riti;;-rtifes;··r;;;g{sli].tiii(l" ..JU(1T.d~~·0':·
7New York Vehicle and Traffic Law § 20. The statute contains detailed sped-
relating
ficati(>lls of
method to qualincations
conducting examination of to
persons entitled
determine to obtain
fitness, licenses. III the
the Commissioner is 8GOODN{lW, CO»U'AIMTIVE Ai)MXNlSTRA1IVE LAW (1893) p. 8. The r-ecernUy
instrll(:ted that any e:x:arninatiol1 must be conducted by "an inspector or deputy adopted A:mJI"'STRA'JfllV~ PROCEDURE Acr provides a Code of Admin!strativ@
inspector, designated for that purpose by authority of tllC Cammissioner." :tavv in this sense. S'ee note 12, infra.
8 GENERAL PRACTICE ADMINISTRATIVE. AGENCIES 9

constitutional,,,,,hich rel5ulate th~ c()gtit:il::! ot~cimil:*tr?tiv~agende~
,anddeflne' the'extenitowhlc}]'thit
,,",,,,,_~ __,~,,,,,_,_,,,".,«~,~,,~~"'''''''_'''''
__ ,~,'"«•._ .•,,.
courtswil) review administrative
''·-~"'~~<--''N'~''.~~
..•.
action.
'~"fu-l'927.Justice (then Professor) Frankfurter used the term in a
broader sense. He said that:
"The broad boundaries and far-reaching implications of
these problems may be indicated by saying that administra-
tive law deals with the field of legal control exercised by
law-administering agencies other than the courts, and the
field of control exercised by the courts over such agencies ...
In administrative law we are dealing preeminently with law
in the making ... "9
This definition takes in the agency's e.'t:ercise of authority to par-
ticularize or amplify statutory provisions, and to apply the general
rules contained in the statutes and regulations to specifil: cases.
The practicing lawyer can readily accept the concept of a body of
law which prescribes the functioning of an agency, its powers, and
the limits beyond which it may not trespass, These powers may be
expressed itl or implied from a statute, or they may at times be in-
herent in an office, but at all events their boundaries are subject to
judicial determination. On the other hand, the lawyer accustomed to
think .~f1!ls 0"L~Jti:£!!LUt~L!orm.,2f.J~:~!~!}@~!llJindJ. . .itA!.ffi£!!JUp
determine either by rule or by decision, private rights and obliga-
"."c_~_.,_".,.".~.,_. __...,~·,~_,_..,;_""""~"""'_"'._,... '....
~_." ".,_ .~__,.."
tions" as the measure of an administrative unit, computed their num-
ber in the Federal Government to be between 27 and 51.11 The report
indicates, however, that the United States Government Manual listed
som(: 200 agencies, which included various divisions and bureaus of
the Executive Departments.
On the other hand, the recent Congressional action to codify the
law of administrative agencies to "improve the administration of
justice by prescribing fair administrative procedure," defines an
agency in the following terms:
Il 'Agency' means each authority (whether or not within
Or subject to review by another agency) of the Government
of the United States other than Congress, the courts, or the
governments of the· possessions, territories, or the District
of Columbia."ll!
and Exchange
agencies such asCommission,
the Interstatethe TreasuryCommission,the
Commerce Department and similar .I
Securities
units, but also the simplest agencies which are mere registry offices
By this definition there are included not only the highly integrated )
.' kind of definition applied to state agencies would include such bodies I
and -of which the Register of Copyrights may be an example. That
I as public service and utilities commissions, workmen's compensation .~
I·

~~~he __'Y.Q£.c;!,:~~~_,~j;lU~]1~!,QLaE".~g~~!l:;Y-,1Vhi£hj:3,,~!lid
~~.!e n£..~'legis.~~~!~:~.r~~~!!.2.z:,~!!~,!~~.~~L~di~1i~~~,~!.,.,~~~!,:~,~e . other public offices which administer various regulatory statutes. '
\.... commissions, li£~!~~£"fu11£~"~'S~~pgE~.!!E).~,J~!!!~.,!.
~<""
~~,",,!h~.""!TI~qYJI
~_'"·"_-""""~_c'''"''·''-''''~·'''~''''"''··''''_''·"''_···''''""'~····""'-~"'"""'"" "'''~-''''''''~',,,,,,,-,,,,,,,,",,
.••••,-,.'.,,,,>-<,,.,., .. " ,."""",, •••. " ... ,0... "'/0
11.1','
... ·".".,.",,. _k, .'"'" ,,,,,,_,".'-. "".,."-·c.,"w, ..p. •••...••

agency':whIch is sa1d to have no "JudIcIal" power. He 1S more than In the face of disagreement on the fti;d~me~tai'question of what
ever"c-;;~fu;;edWhen'-lli(r'agency;s-'auth~~j~y"ii'-described as "qu..~si" should be considered as an administrative agency, it is not surprising
eg~!~~!veand "quasi" judicial.
,1.
.•.••..•..•.
,...... .", . ·""".,H""
"'-=p,,,,,, ••.,,,,---~",_"'~-~--""'_"'" ,." .•,-",,,.~.,.., that the thinking on the various problems arising in that area should
sometimes be uncertain.
Definition of "Adminlstrat;ve Agenc:JI" Confusing
It is sometimes not realized that administrative agencies, if that
There is even a lack of agreement on the score of what consti- term be used in its broadest sense, have always been a part of our
tutes an administrative agency. In 1938, James Landis pointed out that
the estimate of the number of federal administrative agencies "varied l1FOCNAL REPORT OF THE AnOltNE¥ GENERAL'S COMMI'C'l'EE OK ADlIUNISTRATIVR

from 50 to 115, depending on the viewpoint of the estimator as to PROCf:DURE--SEN. Doc. No.8, 77thCong" 1st Bess. (1941), Pl'. 7 et seq. This
report will be referred to as the ATTIlRNE¥ GENEML'S COMMI'l'TEE REPORT.
what mayor may not constitute an administrative agency."10 The effective September 11, 1946. Sections
12ADMI:lTr5TRATrVE PROCEDURE ACT, and i
Attt:lrney General's Committee, using the yardsticl<:of "the power to 8 of 1JheAct became effective December 11, 1946, and Section 11 on June 11, 1947.
See Senate Report No. 752, 79th Cong., 1st Sess., ~. 10 and Appendix A, p. 32.
9Frall1kfurter, The TClSl~ of Administrative Law, (1927) 75 U. Wi' P A. L. This reJilort
(pp. 1-5), as contains a history
well as a full of the
discussion various
of the llrIor
present Act, proposals
and shouldfor
be legislation
read. See,
REV; 614,615. also, Report of the Committee on the Judiciary, H. Rep. No. 1980, 79th Cong"
10LANDIS, THE ADllUNISTRATlVE PROCESS (1938), pp. 18-19. 2nd Sess.
 10 GENERAL l'RAC'rICE
AD:\UNISTRATIVE AGENCiES 11

governmental pattern, although not known by that name. Even in

being developed, the adjudications concern for the most part the
the more restricted sense used by the Attomey General's Committee,
interpretation of specific statutes, th.e powers and duties of the
sum agencies date back to 1789.18 The earlier units were concerned,
agencies ooder these statutes, tmd to some extent the judicial stand"
however, mail}ly widl the conduct of the Government's business,
:aros of propriety of action to which these agencies are required to
the granting of benefits, and regulation in extremely limited spheres.
conxonn. Even there, the emplmsls is upon the specific l'!.spects whicb
Only ill the last sixty years did ther.e corne into being the concept of
come up for review. The operating machinery of the administrative
"the deliberate organization of a governmental unit whose single
process obviously does not and cannot become apparent from thc:se
concern was the wen being, in a public sense, of a. vital and national
decisions, 'This is only natura.!. The courts may discuss; the rigMs.
industry."14 But the development went further and resulted in the
duties and powers of. corporations and corporate officers, but there is
£!:·~~~~.!2[~.!i~L~?;::...£C!.~~!':_
was_!h~-!~~llat~Q~
..•.
~~~~ no occasioIDlfor them to give an explanation of how a certificate of
activiuesaffecting in.terestsof private individuals and busmess~co.n· incorporation i,') preparedj and of how it is filed in the appropriate
~~:
.••
cutBnga"cl;oss'fhc"'line"of'
;J\l\- .••__ ~_, ••••••..._
indtistry:1ifAit~~~tiie-"con;;~~1~'~;1~~~t
,~<~-,_",._._"..".,..-~."_,
,_",.,
..\ ".,.~
•••.~""'~_'-""'",, ..,'"
agency, whether known as the Corporation Btrreau or under some
of World War II~ the 'nia:ny war measures expanded governmental other title,
:activity and resulted in a vast incr~ase in the number of administra-
tive agencies. Regulatory measures, such as rationing, and price and PbysJcallwf/rJfl,$j@slatkm.s C011oftuJft.g
!'ent controI1 had Ii!. direct nmpact all every individual in the country.
The physical manifestations of administrative law and procedu.re
The telTHlination of war time regulatory meaSures did not however
likewise add to the general sense of confusion. Each of the l1ll0re
mark th~~end of the expanding area of governmental intervention in
active agencies has its own body of literature. There fme the statut'fs,
economic affairs. Control of. credit and inst;J,Ument purchasing, farm
rules, regulations, orders, bulletins, interpreta.tions, opinions of C01.m~
subsidies, the regulation of the issuance of securities, supervision over
seI, advisory opinions and material called by other names. To the ma ..
atomic energy, the enactment of a full employment law aU promise
terial which is indigenous to a specific agency, there must of course he
increasing administrative regulation it! the post war era. added the court decisions wherein administrative Jaw in its strict sense
is deve1()ped.16
Lat:k of Uf/ukrSCctfuJ$'ieg of lifechod of ()pe1'at~'O'If.
Any idealized pictun; of simplicity and efficiency in the operation
Despite the consciousness that adminstrative processes exist, their 05 government through agencies is negatived by a personal visit to
method .of operation is obscure to laymen and orten to lawyers as the more active agencies. These bodies have the appearance of vast
welt Government operation through agencies wa.s a. matter .of gradual business organizations with: their departments and compleJc internal
growth without any Stet plan or program, Although the growth of structures, the exact extent of which is wholly unknown to anyone
individual units may in some instances have followed some set plan, who is not a specialist in dae workings of the specific agency. OUe
the over-all picture is one of a lack of relationship between the func" has little contact with a commissioner, boai'd member ot mdminis-
tioni:l1lg' of one agency and that of another. Until recently there have tratOl'. Except in the unustlal case, the person who makes the ulti-
been few attempts to deal with the subject comprehensively. In the
decided cases where the law of aclministrat.ive action was and is 16There are however a number: of distinct aids upon whicb thl~ lawyer lnay
rely, Some examples al'e the Federal Register, and the Code of Federal Reg<i'
lations, Tl1C Administrative Law Services and services on special subjects pub.
13AttO:!ll.'rEY' GJl;N1i:1lAI!!S COJIUH'J:1:'El!: REPoR", p. 8; sell Glli'.LLltOItN, FE:IlEllt\I. lished by MattYlCW Bender' and COn1p:my, Commerce Clearing HOllse, and the
ADM:l!mSmA'.l'IVE PIlOCElIDI!iTGS (1941), p, 3.
Prentice Hall ComparlYJ tCl\:t mnd case ljooks, law review and law journal :lh:ticles
14LA:mml, T~n: A:OM[IUSrAA'l'lVE PROCESS (1938), p. 10. The Inte!"state Com .. wllich are indexed in tile Guide to LCj,iilY PI~riodlcals, Annual Surveys such as
merce Commission was established in 1887. those published by New Yotk UniverSIty School of Law and the Umted States
UExamples are the Federal Trade Commission, the National. Labor Rela- Law Week published by the Bureau of National Affairs Inc, Prillted- gover'll-
tions Board, the Wages and Hours Administrator, ~he Bureau of Internal men! documents are available from the Supcrintcndellt of DOt1Jn1ents and tlhose
Revenue, Mid the '1'allt Court. which are out of print are available at the Library of Congress, and other
libraries. Material can be secured from tbe agencies directly.
12 GENERAL PlitACTICE ADMINISTRATIVE AGENCIES 13

mate decision, (;1" who actually issues the desired license or order, is (b) Requires public participation in rule making;
not the person to whom the data has been presented 01' to whom the (c) Establishes uniform statldards £01' the con'duct of rule maJdllg
argument has been O1ade,11 The lawyer often feels that attempting to and adjudicatory proceedings. One of the objects of the Act
get something in an agency is like punching into a cushion;
dOlle is to effect: a sep!1rati'ot~.between the prosecutory and the adju--
that when, on the other hand, the agency acts against llis client, it is dicatory function ;:1:2
an irresistible force entirely without discipline. ( d t_;:.~§_!!!>J~ui4~~j~!jud!£i.~_1.!.e.!~~WJ.
What has been s:b.id about the sott~ces of confusioil in this area of. (e) Establishes procedures for the qualification and appointment
practice is not intended as that ,ty:P..~....£Ls..riti!;i.~~which inveighs of examiners subject b} the jurisdktion of the Civil Service
Commission.
"\g~~~~!
th:.~~~eal~~.~~~_:t~~£~~.~ra~~~"Qtli~~~E~~~,:'.,,~~,~~§L~!!?,t
~ersmmnzedirTaw. The pomt IS that these elements or 'confUSiOn Although this statute now requires federal agencies to conform to
~irsr,-an'(rthat'iI~errsources should be recognized in considering the general standards of conduct, it does not affect the lawyer's approach
practical question of how to deal with administrative bodies. The to the fv.:mdamental problems of this administrative process. The b.ct
individual who has dealt continuously with v~n'ious agencies knows does riot change the over-all pattern of adminisU'ati.ve law or of the
his way about He recognizes tbat his first contacts with a n.ew govern .. agencies, but merely seeks to remedy some of the deficiencies in their
mental unit wiU bring new problems) but he is able to acclimate him- operatioll.211
self to them readily because of a knowledge of the general pattern by
which all of the agencies operate. Knowledge of the general patte;'rn 1"'HE PA'n:'ERN OF 1m .ADMI~'!JS'1fRATIVE PROC.mSS
is of prime importance, since if that be knOW11$the lawyer is prepared
Despite the complexity and variety of administrative action, the
to deat with his specific problem in the particular agency involved.

ThQ Refot'i'n of AdtnHl#Ml#ve lAw ~at~.hY.",m9.!!!t~J).!ess:!.iliS~.!:J2,~SY

to he pursued and the gen~
In recent years efforts have been made to codify the substantive and
procedural principles of administrative law,ls The Administrative
,\j:~nrlUla
is
eralvested
uponan which
meansin 01
thewhich
itsagency,
administrative
may To
accomplishment.
process
be implement
either rests Government
11 single
is not. compI~~::....
that policy, of- \.
authority
Procedure Act was enacted "to improve the admfniStration-;£Jmtk;-
b.iQiescriblllg
.1lmited~~~·every
·1au:-1i1lm1iiTsti1itiveproce;rure'i'iil~~~diippnes,-willit

Simply stated, the Act:

feliffinrgencyorauthomy.:.I------""-"·· ---
agencyof,
,date
\ficial
22For
or toand
a effectuate
subject
gl'ou.p the
to any
9£ officials !1,~~!~!~~,i~~.~J?X2Jr!~:L§!~tut~.
le.giSlat. ive.. PO!iCY.
acting in a...cItcord.ance
as a unit. W.i.t.h .tl.1eofman~
is the fimction
view of this aspect of admInistrative l'aw see Sharp, The Classital
<J.

Amc1;can Doctritie of "The Separ(Jtio11 of P(Ywcr,~" (1935) 2 U. Ol! CElI. L.

!
...
this._eJ

(a) Prescribes publication, by agencies of their internal organiza.--

REv. 385.
tion, procedures and rules;
23The alld
Register agendell :are of
the Code nowFederal
required to make descriptions
Rregulatiorls, available, through the Fe(leral
of. the organlz!lti.on,
17"Unusual" is lliilCd 1n this sentence in contradistil.1dioil to the ordinary procedtues, 1131015, statements of general policy, and interprctatiol1s,-in short,
all of tlle administrative materials.
case
whereitl an
which a lawyer
argument deals with. had
is ultimately all agency.
before Ita does
board notor apply to procedures
a con:ll:nissioll, and Since the enactment of the Administrative })l.'ocedure Act, tbe Hoavel' 0)111.
whl:re tIle practice is similar to that of an argument before an appellate court. mission on Orga.ni:t:al:ion ot the Executive Branch of tbe Government has issl1ed
lSF'o!' a cOffiprehensiive list of bills introduced since 193,3 S(fl! Miller, Risfor'jJ of :if, series of reports, part of which cover the independent regulatory commis-
the McCarra1~·5'j~mml!r.s Bill (1945) 12 tee.JOUR. 451-457; Na.thanson, Some
Com'tncnts on the AdWli~1i$tra.ti1)e PrOtectlwe Act (1946) 41 ILL. L. RE••••368. sions. These reports poitlt out the lIurtecessary proliferation of agencies, dIlpli.
19 511.5.e. § 1001.
dtion and
lations overhljlpihg
Wllich of. fU1I.ctions, and the over-(,omplicated statutes and r'llgu·
exist today.
2l>Certain war agencies. military authorities, etc., lU'e expressly exempted from The Reor~nlzatioil Act of 1949granted tbe President permanent authority to
the Act.
reorg:;Ulize
the Presidentfederal agencies subject
is authorized to submittQ the COil sent of Congres!,.
r.eorganization Uncle!' the
plans to Congress Act
widell
:lIThe word "authority" is a broad geueral term degjgned to embrace de~art-
become effective after the elapse of a statutory period.
:ments1 commissiolrls, offices, boards, officers, agencies and divisions Within
:agcncues.
-----------------------------------------------------------------------------------------------------

14 GENERAl, lIlACrICE
lIDilIl1iNtS'1'ltATI'VE AGENCIES 15

Bro~~~~, thi~J~~~~rna1?J2!ies!~.an~ldmi~!!t!~tiv~~S~s t<i'ansportatioD~ communications, the issuance and sale of securities

'..,~---
WQprOCesses. It 18 in the detail that a wide divcj,"sity exists. Not aU '~
and some ox the re1atiOll$hips of corporations to their stockholders,
~~.1:<:~~~Ju~~! !heJ~t:-
po'!ers~~_'::~
__
f!1~_~~e the sale and distributio:n of alcoholic beverages, racing, banking,
:!~!2~!_!!~l~.:~~Oll1_~~~_~!r!rom_~~~~~.!~-~~~t~~:a.:~e h15urance and many others. There are, on the other hand, sge:ncies
lUh~~a:!~Ed i~wers a~~UtL~,~~3 be iounc:!Jn which deal with matters affecting many industries and illdividuals,
~,~~r~~£:..:lli~,~.1-
..Qf its l!!~_~10n_!.Jts .aut~~~i!r.~~~tl_~Jl but whose functioning is limited to particular phases of g'ovemmental
well as the limit of its powers, must be foundTu some law enacted
imsilless 01' economic problems" Among these are taxing authorities,
;ya, 1cgis1&tUre.24 An agency -may beca:ifed a commlssmn, I'tbl1reau,
agencies regulating banking, workmen's compensation commissions,
itlroara," an-ati1:hority, an administration, an administrator or an
state and federal labor boards, the Wage and Hout, Administrator
)fficte. The circumstance that two agencies a.re both christened com-
missions does not mean that theil' powers or duties are identical, and
and unemployment insurance boards. "'U1S.AAE!~~!!LIm£Lt"J.;;,~~~
the fact that one is called a commission and another a board does not
~~2!:L".tO.J:ake-an.Qt~~;!!!Ull~7-doesnot deal with any specific indus-
try, but has iurisdiction over practices of many industries and indus-
necessarily indicate <II difference in their functioning or structure. The
trial (~once;;s,'flhCreare agencies which regulate and supervise activi-
power to administer a statute and to make rules and decisions may
ties of a ,!!9!l..:::.t(ljJlm~r.f!~J1arill;t!tr-the problems may be soda! or
be delegated to an independent body, to an existing officer of the
political, such as immigration, naturalization, education, public health
executive branch of the Government, to the head of a department of and those of kindred nature. 9_·~-~~'_-_~'_
the Government, to some existing agency, or to a new agency spe;'
:idly created for that purpose. The agencies so (:reatl~d, whatever Vark#(/l';n i,;; AglfNliif::Y Pff}w.ers ai'J.J Df#.~k$
:hey arc caned, and wliate:ver their composition, merely constitute
Agencies vary in thE: complexity of their powers. functions and
:he governmental mechanism by which a legislativ'e policy is imple·
:nented.M duties., Some are essentially registryT offices. They make determina~
Hons of law and fact, but their regulatory power ceases as soon a.s a
Mulllittide of T,pes (Jf ActiflJ.#es R.eguM#ed registration is effected. A common eXll.tmpie of such an agency is a
Agencies deal with a multitude of types of activity. There are corporation bureau (it may bear different names in different states).
those which n~gulate many phases of particular industries, such as 'WJten a certificate of incorporation is tiled with. a corporation bureau,
""'-_.- ...•...

the agency determines wbether the document cOllforms to the corpo--

24U. S. Alkali Asa'n v, Uuited States, 325 U. S. 196 (1945) j Stark v. Wickard,
J21 U. S.288, 309 (1944) • Acorn Empioyment Service, Inc. v. Moss, 292 N. y, ration statute. Under th~llaws of many of the states, the cOl-porate
14/, 54 N,E. (Zd) 340 (1944) : Matter of Hines v, LaGuardia 293 N. Y. 2lJ7,56
N.E, (2d) 553 (1944) ; Addison v, Holty Hill Co., 322 U. s. 607 (1944); McLean title chosen must 1'!Ot conflict with a name 0 f an existing corporation,
Ordinary business corporations, moreover, may not in New York,
frucldng Co. v. United Stale~ 321 U. S.67, 79 (1944) j National Broadcasting
:0. v.Co.,
Jats United States,
318 U. S. 218319 U. ,::).
(1943) 190 Cotton
; Opp i
(943) Mills
Security Administrator 312v.U.Quaker
v" Administrator, S. 126 as an irnstam:~~,include in d~eit' tides words SUdl as ubanki:llg" or
(1941) ; United States v. Rock Royal Co-op., 307 U. S.533 (1939): Morgall v. "investment." Various corporation laws contain various requirements
United States, 304 U. S. 1 (1938) .•
~ 25Skidrll.ore v. Swift &: Co., 323 U. S. 134, 137 (1944); United States v, in respe(:t of corporate charters. It is the fuxdion of tI,e corporation
bureau to match the certificate (or any amendments the:reofp or aJ
Darby, 312 U. S, 100, 120 (1941) ; Republic Aviation Corp. v. Nationail.abor
Bo<1.1!'d,32'.4 fll!gulated
Relatiolls Government
Federal U. S.793, residential
798, 800 (1945). Du:ri!lE
rents, and NewtheYork war,com-
recentState the certificate of dissolution) with the statutory provisions and determine
whether the statutory requirements are met. With this process, how-
mercial rents. '!,he
means ad~ttCd ultimate
differed. FederalwasGovernment
The object similar in acted
both cases,
throughalthough the
the device
:If an administrative ageKlcy·-OPA (EMERGENCY PI'l!CE CONTROL Acr,.50
ever, the :func~ion of the corporation bureau ends. In most, if not all,
[J.S.c., ~ 902[b] (Supp. 1.941-45)). whereas the State stattxte :fixed a per- of the states, the corporation bureau has no supervisOl'y power over
missible m,crease sub; ed: to variation through court pToceedings 0, arbitration
(LAws OF 1945, C, 3). Eoth l1ilethods received the approvai of the courts. the corporation's busilless or the exercise of its charter powers. It.
does not regulate the corporation's sale of stock, the conduct of its
Bowles
It. v. Wiliing:na!n,
Waldman, 294 N, Y. 321 U. N.R.
571,63 S, 503 m
(2d)(1944);(945).
TWeiltieth untlH)' Associates
affairs, or its relationships with stockholders or creditors. It does not
16 GJmERAL PRACTiCE
ADMINISTRATIVE AGENCIES 17

compel adherence to law orprosect1te violations of law;26

enJi~I,f_td in in!~!.~~~!.t.~;a~~E~.:tat,i~i.l~?_s~.2b£e!~~~~~~ty
'B~_t~~£<l!..rie~s
h£.~!:}.~~~~!~j~!L~~~!E!~[~.!!~!:l]se
..~ur~~:. This functionsonly rules and :regtilations prescribed by the Interstate Commerce C0mn11S-
at th:e inception of a m:axriage. Its duty is to issue licenses to !:hose ~io!:!:Wh~;theCo~1ssion-proni~1J.gaj:ed 'detailed and elaborate stand-
parties who meet the statutory stat1.dard.ty~~~..!l.£>.J!!ris9J.£.t;lg!l..Ov!:'.:.. ards for the operation of motor vehicles and the qualifications of
the marriage itself or over the obHgation~J?L!J!!!~Jl<!~!~tlo._.s'l:lpport drivers, these ntles, as subsidiary legislation, beca.me partol the Inter-

1~1i~:~~~~5~
~~;=:f!f§~~~~t.~?E~~~~_.!-i~~
...
~~~~
..?~§~~£-
state Commerce Act.. Similarly, when the Commission prescribe,,; rates
it ill exercising a fiunction which is legislative in nature. When the
'--Atth~-~ppo~~lt;-;;t~-;;~'~':the
type of agency which has a multi-
~~sid..~lltdm!:krJh!<~~~~h!?~i!Y O~,!E~.I£~i!?g_~Jyit~.~.~ !r~~!~l,l§t, ~J11-1
i ,<
tl1deof and the duty of constf.lnt supervision. Of these, the
powers,
Interstate Commerce Commission is perhaps the most (JUtstlmding .!~_.e!.r:p.~~X
1.S~1:1E4..1!:!l.. (>.r<1_~rregtll:lti.I!gd~<:t!\!~&:s~ifh ot..~?rei~!1:.~a-
; f) ~ Cf~;;':j
example. That Commission }Iasregulatory jurisdiction over. interstate
tiOllt:!l!i!Jtil.g~~~!~~~m~l.JJ..§~
a violation of [that order carried the same (~, ~.. ' '11
consequences as though each of its provisions had appeared in the 'III/il{i/
transportation by railroad, water carriers,motor carners and freight
forwarders. Within its jurisd.iction lies the regulation not only of
statute as adopted by Congress.26 In 62th Q.Lili ..~.!U~~n~:?!.l~.£ ..£Q~- (k, '-('t: f" .

services to be rendered and rates to be charged, but also of the issu- t,~~oUin~,"::!~~!.~.:nd_~2:
o!..:ler.~~~ed~!:~::,.~!_n:~~~ b~..:-.<:~~.!og~~:le!:.I~~of'" 'if, . .1

a?~~l t~ ng1lts and lobTigations of pnvate mru:Vlduals subject to

anceof stocks, bonds and 'other securities (if the carriers. It may hear
and decide claims for money, such as claims for excess charges, It is
said to possess hoth quasi~legislatiYe and quasi-judicial power. n regtt~
l.ates the conduct of carriers, investigates their practices, !lnd tnakes
determinations in so:me areas where controversies arise. Itdireds ca1'"
ders to adopt or abandon practices, as the case may he, an to tbe end
that there be an adherence to the statutory policy ..
QU4sJ.·uegis14#ve tJ1ul (Jut/sl.Jui/ic,1.al POWIfJI',f
POWCl'll exercised by agencies are sometimes classified into those
which are quasi·,legislative and those which a.re quasHudida1. These
terms are often difficult af application, and sO!i.u~times the form of
pt'oceeding by ;which an agency acts in a partkular case ;is confused
wi.th the capacity in which it is 'functioning',
Among the so-called quasi·.legislative fUl1Ctiol1Sis tile a,uthority
to make substantive rules or regul.ations which have the force of
law.27 "'.rhus, the Interstate
---- Commerce tha:t
.•... ......,""
them.-- , _..-.- _.~_
.._..__.__ _-_ _._-
.._ ,_._ ~_._..- _.__, .._,_~_ c/. ) ( .( 1\
"There:is anotheritype of quasi-legislative power which, becatllse of
the method adopted [or its exercise, is sometimes confused with the
quasi~judicia! power. In passing Upon a tariff establishing a carrier's
rates and charges, the Interstate Commerce Commission does wht\t
Cong-ress itself might have done. Congress. in regulating railroads,
might conceivably hav••e established the rates for the transportation
of passengers Of freight between va-rious 1:>"1int& in the United 'States.
Instead, it entrusted that function to an admh'listrative:agency. The
Con:unission, on its lown !notion, OfUpOl1 application of an interested
party, m~y hoM lu:aringsconcerning the propriety of rates or charges
to be established. The actual method adopted in those hearings is
like that '0£ a court proceeding. Parties present testimony through
witness€:$; they are entitled to cx·oss··examine witnesses produced by
others. Briefs are suhmitted,arguments may be had, and findings
are made. It is generally recognized that Ithe rate-making function is
n legislative,29 but it wi.ll be noted that t11l~ method by which a decision

l>.llHowevcr, where blue sky la.ws arc in effect, the sale of securities may be
'--'--'-
is reached resembles that of a "judicial" proceeding.
regulated by the COl'poration Comrl1issioner and/or other state officials.
llllUnited States v. Von Clemtn, 136 1".(2&) gOO .• 970 (C.c.A. 2<1, 1943), cera.
27Whetl the OP A, during the 'War issued a general order fixing as ceiling i
cltmied, 320 U. S. 769 (11943) see Ca:inpoell v. Chase National Banl<, 5 F. SU1>P.
priees th~)se 1IIlhicb were c:ha.rged i111\:i:arch, 1942, tbat onIerhad the san'le effect 156S.(S.D.
U. 592 N. Y. 11933).
(1934); off'd,,'Il F. v.
ct. Korematsu i(2d) 669 (C.C.A.2<1.
lJl:1itcd 1934),
States. 323 U. m
eerJ deeiied,
S. 214, 293
:(1944).
as
Stares, 321 itU.S.
thougil had.414
becnwritten into v.
(1944) ; Dowie!! theWillingham, u.s. 503,
price control321statute. Yalros v. United
51:2-14(1944); 2(JATTOllN"'Y GENERAL'S C01irldll'l'ElJ: REPOlt!', P. 12 "To determine what :rate,
United Stat~s v. Ha.rks, 320 U,.s. 531, 536 (1944). rule Or practice shall be deemed reasonable for the future is a ,legislative (lI'
That quasi legislZ!tive polides may find their form111ation in the decision of administrati.ve function. To (letertnine whether ~ shipper lias in 'the piilst )been
sp'ccific c~ses by the ageilCY, 'see SEe v.Chenery Corp., 3.32 U.S. 194, 202, 203
(1947) .. wl'Ol1~edby tbe exaction
funcnoil,"Great iNorthernof Ry.
an Ulueasollable
v. Merchil!nts'orEllevator
discriminatory
Co., 259rate judicial
trJ.isS.a 285, 29~
(ConHmeedl(1$I follo'wing page;)
18 GENlElU\.L PRACTICE
ADYLNISTRATIVE AGENCIES 19

It. ill tlle same form of proceeding adopted by the Feder£\i Trade
Commission in disdplirling a private individual fOT violating the
statute which it administers. It is also the same kind of procedure as
that employed in a proceeding to revoke a license» 01' m d.etermining
that an. individual is entitled Q;ounemployment insurance benefits. or
that he is obligated to pay a tlJ\X. These procedures are usually eon~
sidered to be an exercise of quasi. judicial power,so
Direct iliJnJt 1,uUtri1(:$ G01l'lmt'l1JJe~})# Itl!l?evotis#
The illustrations giv((;l!ll above are essentia.lly contests betweel1 the
Government acting in the public interest and an individual acting nn
furtherance or a priva.te :interest. Not aU controversies which come be~
fore the administrative agencies are of that character. An opposition
proceeding in t.h.~Patent Office centers about a private dispute be-
tween two claimants to a trademark or patent monopoly, Many of
the proceedings before labor relations boards are likewise private
controversies in the sense dlat the public interest is indirect. An
.employer is obligated to bargain 1ilfith x'epresel1tatives of his em-
ployees» but the public is not directly affected by the determination
powers in some aspects of the performance of their duties and not
in others. Under some of the provi.sions of the Fair Labor St2l.ndards
Act, for example, the criterioll of coverage is fixed by the statute
not by regulations of the A.dnainistra.tor; and d'le de~erminatiiOn of
3.11&
coverage is made in the first instance by the courts,SS Under other
provisions of the Act, however, the .'\.dministrator himself l:l1ay
establish exceptions.34 However the employee to whom payment has
not been made in accordance with the Act does not uncle!' either dr-
cumstance have an administrative remedy, but must sue in the
courts.M But the right of resort to the court is not reserved exclusively
to private parties. The Administrator may SUe for injunctive relief
and has recently urged his right to an award for back pay as part or
.the injunctive decree. Further, criminal penalties may he invoked in
an actiO!l prosecuted however by the United States Attorney. Thus
the Act provides a multitude of remedies and c.al1s upon different
offices and ag·endes.36
'[\1~E~d~rallx~~~~f!!!J!!rd~J.j.!2J~§."gb:~~_SJ?£5(ifi~·..e()!~r~Jt~derJf,!lri-
~us st~tut~s. Whcl'e, fOf example, a manufacturer is charged with
IUlsrepre::enting his product lOr engaging in other unfair methods or I

whether the collective bargaining agency be ()ltl: group or another.

Similarly, unions may initiate proceedings before the National Rail-
competition the agency will institute an administrative proceeding by 'rf~
complaint a~ldif)b~u;.Qmgl.e~Ptj~,"!1il§!g~E£~t a.ce~S~A;QQ desist Of?Cl'
rOll.d Adjustment Board to resolve disputes growing out of grievances win·~ .•...
'.,.d._•..• issue.
·,~""""'.J When the FTC acts under the Clayton Act, its'cea:se~and
or out of tbe interpretation or application of co1iective bargaining
agreements concerning rates of pay, rules or working conditions.S! 38"Unlike the Interstate Commerce Act and tbe National Labor Relationa
Aet amd other legislation, the Fair Labor Stand~,rds Act 'puts upon the courts
'Ule Board may make money awards which are enforceable in the the ludependelltresponsnbility of :applying ad hoc tbe general terms of the
district coU:rt.S.1l2 To settle stich private disputes, the lllOvemment
statute to an infinite vllIrlet:v of complicated industl'illll situations." Kirschbaum
merely provides a.tribunal for orderly procedure. 1/, Walling, :U6 U. S. .511, 523 (1942); accord, 10 East 40th Street Corpol!'ation
v. Calun, 325 U. S.578 <1945) ; Bordell Co. v. Borella, 325 tJ. S. 67!) (1945) ;
v. Harnischfeger Co., 325 U. S.4'11 (1945); Roland Electric Co. v.
.Aan'/.;msu'aftl'V(fJ 01' Co,f.rl RMynedies -, 66 Sup. (to 41.3 (19«i). See lllP. 419-420 where f:he deliberate pattern
of the Act is discussed in terms of its legislative l:dstolj/". Bilt the admimstratol'
ll:lay examineand books :and records to determine whethet· there is coverage I.mael'
N at all agencies posse.sE~ or exercise quasi-legislative and tbe Wage Hour Law.
quasi-judicial powers; in Siome instancetS they maY' e'terdse such g.3Addison v. Holly Hill Co. 322 U. S. 007 (1944).

(1922), Frequentlr, tbe line (If demareation between quasHudicill.1 and qua!li~ 35FAlil LAllol"{ STAlTllA1UlS
bY'Portal-to-Portal AGt, 29AC":!.j,
u.:::"C,1938,
§ <lll
25B.amended 29 n,s,C, § 216(1)) i anvmded
le~sb:ti •••
e proc~dures is iii. difficult ol1e to draw. ADMllN!s'rlUl.·ow ADJUDJCAT!()!f
3t'Onll note of caution should be added here. Legislation of this character is
Xlii"'TIU: S'IA'rit OF NEW YORK (a Report to the ('1<QVel'110X" of the State of New fluid and the lawyer must constantly keepPayabreast of D.S,C.
amendatory
For example, under tbe Portal-to-Portal Act (29 § 258)enactments,
numerous
§ S (If made
Y<Cl."k, 1942, by will
iil MlU'ch,Law·-tbill
the Exeeutilre Robert M. Benjamin,
be cited as Commissioller
as the BENJAMIN under
REll01lT), PP. 5-0. claims recognized under the Fair LabO!' Standards Act of 1938 were retroactively
<lOCHAliilBEIl1.J:JN,DoWLING & HAYES, Tl:'iE JUDICIAL FUNCTION IN FllDERAL banned. Furthermore, under the .Portal-to-Portal Act reliance u.pon an adminis-
A.:IlIUNl11·mATXVE AGl!:NCll!S (1942), p. 2. trative mle or interpretation is a bar to aoy action under the Fmr Labor Stand-
:!l1l45 U.S.c. § l5Z(i). ards Act even though tbe :rule is later allel'ed, withdrawn or revoked, The status
112.~)US.c. § 159. of releases executed by employees has likeWIse been cl1anged by tile Porl-al-to-
Portal Act (29 U.S,C. §§ 251 el seq.) ,
 .lU)li'",1.Al.·~ J.{lJ,Ij,.f1.J.J.V £.I ;f":l.'Ul,;(.,I,·4'l."i,U;.+W'
~fj3~j}rn13l,.1.1 jl.n~J:,.!r,~£1X(:);~
20
of tlM~ by Wl1l.(:tt,\
desist Oro.el" mu.st en~:ol\ee(j! i:n
01;' l\i1l.l.Y xlOt dOl llnd 'what their raghts ::1:nr1 ohiig14tiol:1s :tUf. Th'i:re ;;\:j.'!fj
of .Appeals. And when tb.e iinds that a mal1iU£act1.31'el" haB e:rr.l"
the pr()C'~(hl.irlB[; •.m,w be adopted, FinaUyu there is the l!:(jI,;thod
plo;red false ~;"dv<e~til11ng ~njt:1dotlsto h~a1th or with ihltE~nlt to (1efra:udp of ~;pplyil1g the l.aw f.md. pl.'oi~f:dure to spedl.1e tases,
it l:!llay rep01t Hs -;:<1 Atto1"r!<';Y Genetal for criminal p;tO-

~n

wi.tll, r.!.elr.:iCB';}i~:Vof adjl:Ef;ttng om'9e!veo to ((11.3

OX this 1!1i!i,~':i\:;tv ami tlliutiesp R~ ir5
;,'(~t~l!ignitiQn that tb.CJ the ;!\[;:i:;iiK:ies ll.ch.nhtlr;i1i:',;i.' irl
to g'I:,I'£1.(::>,'[\jl,liA: 'Of agendei;} in
:l:otood in til. lItatutol'Y q:od(;~.'fhln lf3 i::i'li,ek1ot
the ,'£l,OrJtr<iA:t. Each 0 f pl~1tp;Oses:, he
s.spccts of the but ,dso of the Stlbst()l,l::lti'~'e
ad:!liLil1istrative proceSlll
vii(')'\1va~d lilS amI g tlem(.J.'<\1:t:;
l'tlll~sof taw ~)ywhidl pK'ivate citizens nna theil' illten;sts :nre gO'lJe~·ned,
C0l1l.'S0 of Wl1ich is cle1i:eE'ffnhled by Ita
The adjustl"nent h: nCCCSIW.r:y' because
~;ormnciY.l. d.elUonnh1fitC)K lis
OtU' tn~il1ing it!
de13cdbes !Iwhat job mfu1st R'c<iJ:tioi1. b it is 1(101: @iy o>n pet'nonal {expedence,
scops of his ~r!:l,thority.'3113 hut 1:lJ?OD; discussio~ns wlfth tithe!; :membe:l's (1£ the bar and particu.h~dy
witb tho young'Cl'ltl'!<J1noi)tS of ~he profession. l.trwyers wl1lJ p.ttac~ic(~
;'l,ctively befiDwe adlmiil'!ist:raHve ag\mcies [J,gl'ee tha.i: i:he first steif in
developing mJ. "IH1milllistr'~~ti'vejaw" 9:p:l?roach i.r:;to free flnc~w[f ;~rom
VVitlll ill lJubjed mattcx' 8XK~ :~X'(l(~edtln;:nl.1 the l'casi~ book coll'asdo'l!sness." VV'h<m a dicf£1t c.onsults us rot ;an
\dlt~'j,'C}
Opir.liolJ'l 01' when we pn~pal'e (or ]itigatiol1, 'lire have a tendex!lcy to
fOA'~11tI1re~llt ~\llby AcJ,'t:",f]'(:lj[':~ EKlay tot" the d.ecided easeD to of: iB apF!H,e;'lbl.e

their d\~aU~:lg·r.
tvith the adXl:lilnis1i:l"[J.~:h!G 8,1~(m(;ies. Ii; i3 to the calle. ~:'~~:,g!~t!!l~,.g~~2:;~1 ~!~~~'\;F~?!:~!..
:I:~!l~a%de.jrf,1.Q.p'~,~Ll~1"d;E,.d4~,
thE:&'c S!1"I.~. led to Hie statutes to see whetb.el' by some enactment of the lefl1s1att11'(~
Conaider({ltian (If the methor& of deall.tng with thi~ br<ll1chof If~::£.QK11l1:!QJL.bl~Y has been eodified 01' :modified. It is only ht a ~ew
ar(~;;u\th;;l,t we thmk of the st,rtute first-30
dc<Zl di'\lidt.!J itseU hreto 'Va,riolJls e!l:tegodes. There E:iX'if: the dl.;;'iraIC~\';"'·'

9'l'''Were I:bio lint 01! musth·(l.tiOl~S .-s.tendr:d fUlcit the vadOlw ~'egl;t!Ii.ltol.'''' sellen,cf;
tXll'OV/111 ,lilt,!) 0, llOttl"'!lOl:, ~iM'J. f~e9!1H: wC11l1d be; Ibop~'jeilc dlsoort. Al1I]' i:o do. GO In tOur 1:0 the method m~lU)~
W:lttlQlo.iif.:tr.;g,th'eipfOCCSfJ,
w()ulcl. !If;; V;Oibl'i':)pj; tl!(:~I\) Eoggg!al:ml ndWlIJc:EJ tlwtlgb \:Kley Wt1ro pal:!; Ok ls
*JprJy o~ l\'IW In!iteacll ox {l!ll;;b bClhlfj ii. tldf"~~mil:r;lil'!(e(t sdilcln~;'" ~!'R'Billt" l'enJ'ersed" The statutep alwa.ys b,~ kept 111mhld1 is the b::1\!lic
it IlC!1l.1St

, J" aiS$l1vtitllO {,ii Stui'll: 'll. Wlcka.'cll 2i;~j!'11. f;, ;~gB, :n;?' (l1.~;14), code; '•..
1Ihich gov\:ll"m, both fhe prft'ltat~ dt[;l,cu Oi' interest
SB}30wl"s 'If. \Mll1nghs.t'l.1, :.121U. S. 503, 515 (1944). The llt~bjcl:t ll1l:1Her over
age:nc;v which adrrRinistel'a that law. The im~.ui:r:l' in each hwtUl'SiC<l must
whikh Co>ncr;ress (11'a ~I;o.~elQ~islahlte may, within Cou!l~ltjjtio!'l'ili limits, ~"lel'·
I:iae te{!,i~h~~()l.'1' yOW01', hi o>lwloVlsl;v bl'S'(,m&. ~he flcope tilt tthis dlacu,wEo!d, 'J.'he bt~ WI18.l: ruk: does the: sftattlb:J p~'ovide, what dght!; or llabimie;21 m't';
"f.:dl:c:r!c::lIA In ~htfl ~SflC'ct {joee not depond 1l.!?0!l' whethm: 0, !ltl"tute hi admlnl,!1fei'Cn ,
created by s2ii1ttlte~ tmr1. l.s statHi:or:Vl'l'A,;:;;:J.lflJd flCCm.11plh;:lhing
deltlJl2;;\1tlmn {j.f allth~l'it·;" sillce 2 lllgifl!nh!E'e not aMk(l,t(~ its ~~!llctiml!l,'",;;/>';"/(\
\',. by
'«"I" a~l'''" <lS(l~l(:Y.
Ii.:, !' tUt\AUla" 7:.<7 " '1'1\01"\1
l,'ht~;/.Ul1):."lg \i.
t). '~lr.a.
"",',
f•.••.• 1'"owe'l'cl',
1:'"!!,,
\'!.!:."j v t!.·";Jv
~!.,,~,; .en<\, n\\'A~ c,:,
t,,'~\' ,.\ ",I'H'\.
CO!lgtltt1~lomitl I l o~r,:IJt:;C!~
~I" ifilVO!'JilI1
l!lXC8ht)l1iS
£""'1.1;; ','! "
!" 1;:1,
e~ \,./01·1)<:; "7'
it c~ ','. ,II,\
••' 'i:lilr'l: l'("
\ '\ ·"Ii..

1i'Jlld'!Q(!, ;:)t<:'\li(;,;9" :1,% '(Jr, ;3,

O\\l3!J), ''fa'ile l:Jr,tem;h'CU12BB
41'1),5 ,)f( ~tie bmli.ldttJ:1<;~," ".'l~'~ l\!1"l'hI,s
to!l1ed tll is ~artlcularly
code procedt:ll'e uo III !.'!1I2,ttel'H oR practice, where
~ud~ lawyel'u
(!ill iSl!l'ovhted by the Civll PI':Jldke tlll'~ &/1l:CllS"
Aelof New
howev'il!:', Ill\t~\y deper:ul. Oll! t~w s!llbjec~ rtl<lttc;~' ill tiie lc;f4181athrc; ~\cti[m I.iltl tile '''l\~ YOi\1k,01' the }!'ede,'a.U RIdes of Chill P.·ocedtne. CrJminal law hI, or C<:Ol.lI·ij(~,
cirCII1l1!1!lI;mnU:<>3l:l wInch rl~jjtil'aeed. It. KOl"emntzu v. United States, 323 '0. S, 214, statutory, Iii some specialized fil:!a!l, such an ~axatill:nl patents, copyrl[gl11ts !I'ldl
219' (944); Ya~(1!.\Bv, 1tJl.li~e1d, Stah,u, 3;;;lll EL414 (1944) ; Bowles v. Wiliillg- dc(:(~dei:lts'estates, the law Is primal'lly stahl!ory, In still othm's, fhare is 2.1n ad~
mix.lure (}f statutory and common law j'ules.
barn, S',1}J1mi'. :~irablJlYilsT,1i
'J, Clll~ISS-\i\Hlg~l~ Coxj)., 2~9 :Ol1ij;~~
". U. S. ,,04Stt:t~o,
(1936).320 U. S. 81 (1943) i Unit(~d Stutes
22 GENERAl~PRACTICE AD1\UNISTRATl'VE AGENCIES 23

the result. In consequence, we cannot think in terrns of general Similarly, it would be rash to assume that. because a statute or an
pritldples, logic, justice or historical development and analogy. We agency providl,'.$ a code for some phase of our economy, it covers aU
can thinl( only in terms of a legislative d.eclaration--a rule which aspects of that subject.
stems from a statute, and the extent and limitation of which must be The applicability of a statute may depend upon the relationship IOf

found in such statute, or in some amplification or specification whicb a person or transaction to interstate or intrastate commcrce,411 or the
an agency is authorized to make. A good habit to develop in this field use of interstate or post office fadlities.48 It may depend upon the
is, therefore, to reach for the statute first to see what it says, and only number of employees in one employer's service,..14 or the nature of
later to scalfch for what a court or someone else has said about it. tbe work ill which the employees are engaged.i!6 It may depend upon
If a statutory provision has not already been adeqtt~tely construed the nature of the business in which a person is engaged,lia The cover-
it may be important to review the materials bearing on Congressional age may be particularized by a special stab.1tory definition, and if
intent such as reports of House and Senate committees, the Congres~ there arc defInitions in a statute they must be studied with the greatest
sional Record, prior legislation and special investigation studies which of care. Inclusion in or exclusion from the statutory scope may result
may be available on the particular legislation. fronl express language in the body of the statute, or from the defini-
tions of the sense in which the statutory wording is to he react In
An essential consideration in the study of a regulatory statute is
this field of law, the importance of the statutory provisions call1not
the extent to which it is applicable to a concrete case; a number of
be over·l"mphasixed.
factors are involved, and these must be read from the statute itse1f:1Ill
It would. be rash to assume that because an itldustry is regulated ilJJiJks muJ Regtl$;u$on$ of AgcfiU1
under a specific statute, or because under tbat statute the duty of But reliance Ul1011 the statute may not he sufficient, beQuse the
regu.lation is imposed upon a specific agency, every phase of that a:I,pplicable nde of law may be set forth hl a substantive "rule'· or
industry's activities comes within that statute or the jurisdiction of "regulation" of the agency. These stumJd be studied with the same
that agency. It is sometimes said, fOl" example, tha.t the Interstate care as the statutes themselves. Here, however, we run into some
Commerce Commission regulates the railroad transportation system difficulties both in substance and in semantics. We find t121es, regu~
of the country. It: does to a great extent. But suppose a railroad lations. orders, licenses, bulletins and agency documents bearing otber
employee loses his job and seeks unemployment insurance benefits.
He car/tlot. claim them through the ICe. Unemployment insurance 42Compare the following cases with eacit other: Borden Co. 1J. Borella, 325
benefits are usually collected through the state um~mployment insur- U. S. 679 (1945); 10 East 40th Street Corp. v. Callus, 325 U. S.578 (1945);
Kii'schbaum v. Walling, 316 U. S. 517 (1942J ; United States v. Derby, 312 U. S,
ance agencies. Yet, the railroad worker cannot claim under the state 1O() (1941); Federal Trade Commission v. Bunte Bros. 312 U. S. 349 (1941);
acts. 011 the c(mt:rary, he is covered by a special act-the Railroad National Labor Relatlolls Board v. Fainblatt, 300 U. S. 601 (19391. Differences
in wording of statntes may have di:fferent effects. '
Unemployment Insurance ACt.41 The answer to the question of where 48SECUlUTIES ACE of 1933,15 U.S.c. § 77(e).
and how that workman gets his benefits is not one of empiricism 01" 44N. y, UNE.MPLOYMENT INSURANCE LAW §§ 502, 503.
reasoning, but one of statutory coverage. 45Compare Armour & Co. v. Wantoch, 323 U. S. 126 (1944) witl. Sldd:roore
v. Swift &; Co, 323 U. S. 134 (1944). KirECbbat1m v. Walling', 316 U. S. 511
40This is conthe assumption that the statute meets all Constitutional require" (194Z)be'WIth
1Im1.)I' 10 East within
employees 40th St.theCorp. v. Callus,
meaning of 325 U. S. 578
a statute ~vell (1945).
thoughIndividua13
tile .cou..
meats. COl1stittltiolU.l discussion is not within the scope of this mOllOgraph.
See note 38 .supra. ventional Labor
N'mtioual commonRelations
taw relationsbip
Board v.might be that.
Hearst of an independent
Publications, Inc., 322contl·actor.
U. S. 111
-i145 D.S.C. §§ 351 el seq. The variety of factors which may affect the (1944).
46Roland Electric CO'. 'It. Walling, 326 U. S. 657 (1946): Red Hook Cold
coverage of such stlltut«:s
into tbe hyp()thetlcal casc. may be illustrated
If tlte workman by wasinjecting an additional
not employed dement
by a railroad,
but was in l:be employ of a w:iwehousc corpor<!tlon controlled by that ca.rrier, Stor~ Co., Jue. v. Department of Labor ~5 N. Y. 1, 64 N.E. (2d) 265
the Rail1i"oad Unemployment Insurance Att might still apply. R:!.iIroad Retire- (1945); Mattlill' of Mountin~ & Finishing Co. v. McGoldric1r, 294 N. Y. 104,
ment B(Jard v. Duquesll1e Warehouse Co .• 326 U. S. 446 (1946). 64 1\1.K N.R
l00~?60 (2d) (20) 825, 827 (19~S).Matter of Laz2rtlEl (Col'si) 294 N, v. 613,
~69 (1945).
24 GENE:RAL l'RACrICE
names, There is a lack of uniformity of terminology, :!lot only among
agencies in general, but within the agencies themselves. This defect is
n.ot cuted by the Administrative Procedure Act.
Furthermore, l1ot' all 0 f 011.: rules or regulations of agencies have
the same legal consequences. In some instances, an ag'ency is given
discretion to implement the general policy prescribed in :l. statute
by defining the conduct which is prohibited or perm.issible thereunder
C>f the tenris upon which HfI.biHties m' benefits sh.all accrue, In such
case, the rules or regulatiOl'lS issl1ed by the agency will havt~ the same
legal effect as though Congress had in eadll instance amended the
statute. These r.ttles or regulations are "Jaws" in tl1\'~ sense that they
provide general norms of conduct by which adherence to or devia-
tion from statutory requirements will be judged. Perhaps one of. the
clearest examples of this type of agency I'law u.1aking" AS furnished
by the Trading With the Enemy Act as amended in 1941.47 Under
the amendment to § 5 (b) of the Act, the President was ghfcn power
to regitlate dealings in property in which the foreign country or its
n:a.tiona.1s had an interest. The statu~e was not self •.operative, hut
required implementati<J1'l by same act of the President. In due cotirse,
the President issued exel'uti"c orders, commonly called freezing
orders, in which he specified the kinds of transactions which were
prohibited without license and defined the persons whose property
was to be frozen.<t8 Later, the Treasury Department; acting under
.axecutive order, from time to time issued licenses which relieved
property and individuals iIll certain categories from t1~e prescript'ion
ot the e~tectltive order, These il;:1Kccutive orders and general licenses
implementing the statute had the same effect as though their pro~
visions had been written intothe statute itself;1!9
Another example may be found in the regulation of. air tral1spdrta~
Hon. Aviation, in many of its aspects, from production of aircraft to
their 'use in transportation of passengers and :freight is governed by
administrative rules and reguladons. Two agencies function in this
field: The Civil .Aeronautics Board (CAB) and the Civil Aeronautics
Adminh;tration (CAA). The CAB promulgates rules and Carries on.
4'150U.S.c. App. § 5 (Supp, 1~41-45);
dllExecl1tive Order 8389, 5 Fed. Reg, 1400 dated April 10, 1940, &lnd ame11ded
horn time to tim,e" . 111. On the question of legislative adoption. of administrative construction of
49United States v. Von Clctnm, 136 F. (2d) 968 (C.CA. 2<1, 1943), cert.
illltied,320 U. S. 769 (1943).
25
ADMI;;ISTRA'rJIlE AGENelES
the adjudicatory function, i.e., it establishes standards, publishes regu-
lations governing the issuance of safety certificates to aircraft, air-
men, certific3.t(~s of public convenience and necessity, conducts hear-
il1,gs and en.tel's orders which have the force and effect of law. The
CAA, as a major agency, actually issues the safety certificates, inspects
fecluipment, facilities and personnel to determi~e if there has been
compliance with the CAB standardso The CAB virtually determines
who shall operate aircraft, over what routes, and at what :rates, a.nd
how service shaH be provided.
AJ:wther type of agency action of the same character is tha~ 'r",hich
is f0!-lnd in rattH:naking. A carder subject to regulatory statute may
charge only those rates which are set forth in tariffs or schedules
properly established in accordance with statutory mandates. 'Until
rate is thus resta.bHshed, there is no basis for the performance of a
iJl
service or the collection of a charge" When the tariff becomes effec~
tive, however, it is binding 011 both the eanier and the shippt:r. and
any deviation £ rom it constitutes a violation of law.l;o
There are, on the other hand, rtlies or regulations issued by ag<en-
des which do not have this same eiffect. A statute may establish the
totality of policy which is to be e:ffectuated and :may grant to an
agency only the power to enforce that specific rttle, not to establish
variations of tl1at rule or toO fiU in any gaps. Under that kind of a
statutory pmvisioll, the agency may often st<ute by regulation or
buIletin its construction 011' interpretation of the statutory languag'e.
and may announce the meaning it will adopt in enforcing the. law.
Anent this type of regulation, the courts have said that the agency's
opinion wfll be givetl great weight, but that the courts will m;ake
their irlclependent construction of the legislative intention.51
The difference between the two types ot regulation would seem to
lie in the tlatnre of the authority given to the administrator under
'"""'---""-;0"''''''
i
ing6()I:wrllRSTA'!'E
Co. v. UnitedCOMMERCE
States, 209 U. 49
Acl', S.56USe.
(1908),§§ 2, 6 (7) (1940) Armour Pack-
U"The weight of. such. a jtld&me,t in:" parf:kular ,casc,\YiU depen~ ttp?l'!,
the dtoroughneBs eVident all<i
In Its conslderatlon, t~le vallthty of Its te~af30lJ1lilg.r 11:i:,
consistency with earlier later prOilOi.1ncements. and all those factors 'v17vkb
~hre it pfiwer to persuade, if lackill11 in p()'wer to CIJ/I/,yol." (Italk,; sUlJpHleii.)
.31ddmorc v. Swift & Co., 37.3 U. S, 134. 140 (1944), See Gray v. Powell, 314
U. S. 402 National Labor Relatioills Board v. Hearst Publications, 32';' U. S.
a statllte, see Massachusetts ~utual Life Insurance Co. v. United States, 2138
U. S. ?.69, 273, c/. FishgoJd v. Sullivan Drydock & Repair Corp., 328 U. S. 2'15
(1946).
26 GENP.JlAl, P:RACTICE ADMINIS'l'RATIVE AGENCliES 27

the statute. In one case the agency is given discretionary authority to In this phase of the dealings with the agencies, it is likewise <essen-
establish a policy c<.lucemii.llg one or more segments of the over-all tial to start with the statutes. It is important to know whether any
policy promulgated by tile legislature; in the other tlle legaslature has procedural methods or requirements are set forth in the statutes, and 'I.
,V'ithheld auy snell. eIem<ent of discretion from the agency; al:ld has if '50, what they are, and what the individual mayor must do to pre- , ~r~
entrusted 1'.0 the administrator only the duty of comp2'xing the con- serve his rights, 0:1' to become ~ntided to benefits, or to avoid tia- .' _~'.:$.j
duct in individual cases with the specificatnons of the statute. bilitics under the statutes, In some instau(;es there is;:!.choke between ~:~.~ ~<:'- "
Howeve:r9 in neither type of regulation may the agency outrun the administrative determinations and recourse t.o the courts. In others,' ~IS}' \f~
statute. Even where power is delegated to an agency to establish perhaps in the bulk of. cases the .~minif,l.trAtiy.\u:£~.:.dies. m,~~t,.h~'L,.
(:)(~ 'f/~'
substantive negulations having the force of law, its rules must be ~siQ~~le.JlllS.lUU~ ~!~.ding.i.uJ!1!i.E?.!-!~!~..';-., - .. t·;;'
consistent with, and within the framework of, the statutory pro- . the procedtlral rules and regulations promulgated by the vadous
visions.52 agencies differ aU the way from a simple statement of a few esse:ow ," \ /
',....\1
....

tials to elaborate codes which set forth the agendes' requirements ill
Court and ilgem:y Decisjo'frj,s, Etlt. ""'<;,.
"'"j.;.-""~'
".'

grea.t detaH.JJ4 Some of the federal agencies require special admission

From the consideration of the statutes and regulations; the investi- 1:0 practice before them; others dOl not,li5 Because of their variety, no _~•."'f71"''''/~t'"
gation of law s.hould proceed to the construction of the statutes; if attempt will be made to discuss these mles Md regulations, except to
any, by the courts. In addition; constructions of the l:a.w may be emphasize the fact dId they exist and should be known to the attorw
IOttlld in cases decided by the agencies, the opinions of agency coun- ney who deals with the agencies; just as he would know the code of
sel, the legislative history of the statute; and the other sources wit!! procedure and theru1es of practice in a court in which he conducts f"//'
I \'" J

which the lawyer is familiar from his work in other branches of litigation.
the taw.
It should also be pointed out that not aU of the provisions of a
Available Procedw."esJ
!'cgulatory statute are bound up with the administrative process. In
On questions of pl'locedure in the administrative process, we are many of its provisions, such a statute may prescribe substantive roles
on more familiar ground. Lawyers in most states are accustomed to of conduct; may grant bCl1efits or impose obligations, may create
following codes of procedure and rules of practice in their court rights and liabilities, and may prescribe procedures wholly inde-
work; and should not experience any h~trdship with the theory of a pendent of the administrative process.
similar apPl'Oadl in the ag'e:ncy process. For e}camplc, the Vehicle and Traffic Law of the State of New
However, it should be realized that I?"'ocedural methods and re- York contains numerous provisions relating to the operation of auto-
quirements may stem either from the statute, or £!'Om rules and mobiles with which the Motor V chide Bureau and the Commissioner
regulations pl'Omulgated by the a.dministrative agencies, or from of Motor Vehicles have no concern. Speed !imitations are imposed
bot}l. The many detm.iIs of these can be known only by a carerul study hy the statute itself.58 The statute imposes liability for injury upon
of the statutes arnd roles and regt.llations,fis
5~FQr a discussion and analysis of the statnlDry rules of procedure before
l;~Addisoll v. Holly Hill Fruit Co., 322 U. S, 007 (1944) ; Morgan v. United the Interstate Commel'ce Conunissiorl, and the rules of practice adopted by
tlie COlumissioll, .~I!eA MANUAL OF PRAC'fICE AND PROCEl)URE BEFORE 'tHE IN-
States.304
67 (1944); U, S. 1 (1938); Association
Eastern-Central McLean Trucldn~
v. UmtedCO. Y. United
StfiltCS, States,
321 U. S. 194 D, S.
321(1944) i t'fIlSTATE COMMERCE CoMMISSION
IW IN'J.'ERSTATE
issued in pamphlet form by tlle ASSOOA'.I10N
C():M~fERC1.l COMlIUSSION PltAC1'l!TIONI,as and 111'lnted In the
part/! Endo,
Distributors
f!:1' 323 U. S.295
v. O'Col!nell, ~1.N. 300, 30165(1944);
Y. 129, Matter
N.R, (2d) of Colonial
745 (1946) • Liquor Journal of tbe Association, Vol. XII.
53Among the statutory provisions now to be cQnsidered are those contained . ~GThe New York State Ag<mcics have no special rules of admission. Bli:}l~
YAWN REPoRT, p. H6.
ill tlle recently adopted ADMINlSTRATl.VE PROCEDURE Ar::r (note 12, .supra), It
sllOlJld moreover be noted tba.t there may be g<eueral State statutes, dealing 5SN. Y. Vehicle and Traffic Law § 56. However, by § 95, a State Traffic
witll administ!-ative agencies or the re'liew of theil' actions. In New York, for Commission is created, lUte! by § 95~c, tMs Commission Is empowered to regm-
example, the review of determinations of or the proseciltion of actions against late speed and parking on the 'portions of state highways which lie outside of
agencies are governed by Articl,e 78 of the Ctvn:; PRACTICE Ar:r. cities <or incorporated villages.
28 GiENEIUl.L J?RAG'TIC~
the owner of ll\n automobile even when the vehicle is driven by
anot'her person,5'1 A non~resident who drives in New York subjects
himself to the jurisdiction of the (ourts that State if h(: has an
accident; the stllnmom; hn an ~ction against him may be served on
the Secl'etary of State. liS Actions or· proceedings stemming from.
these :;tattttoll'Y provisions [!J'ecognizHlble in the courts, not bdore an
administrative agency. In other words, the "iIl,dous licensing reatVlres
of the statute (and the provisions f01' n~vocnUon of licenses) which
al'e the concern of the administrative agency, comprise only ~. part
of the C01J.lprenetlSive code regulating the ownership and operation
of motor vehicles.
Alil.Otnet example is the Sectnrities Act 0:£ 1933 u!Jdcr which thel'e
is a statutory action maintainable in the courts for damages sustained
in the purchase of stock, despite the registration of the security with
the Securities and Exchange C011'l1missiol!1, when the :re&1stnl.ti,on state-
ment "contained an untrue statement of a material fad Or omitted
t.o state a material, fact required to be stated therein or necessary to
make the statements therein riot misleading'."lilP Simila.rly, Workmen's
Compensation Acts :rnay make provision concerning ~m injured work-
man's electiml to Slle a perSOll not his employer for damages for neg-
ligent i~jurf in lieu of accepting compensation benefits, and that
claim is asserted in tbe courts, not before the \Vod.onen's Compensa-
tion Commission.eo Likewise, under the Interstate C01:nmerce Act, an
action for damages sustained by reason of a breadl of a statutory
duty ma~7 be maintai~led against a carrier j,n the courts when no ad-
ministrative question is imrolved,ot
Methods AiC~:ua.l ithin
"1'//1 .Adtninit,ltll'mdve PfOC<eSS
Knowing i:h{~pattern by which the administrative process operates
a.nd the SOVln:e of' the law which is being administered is only the
li'lU. § 59.
!laId. §52.
n.s.c,p'. § i7(k) (a).
5915
iiOln New York the injured workman may pursue both :rel);,ledies; but the
workmen's eonlpensation iI1SUl'CI' is (~ven a lien all the proeeeda of the recovery
a.gainst t1ll4! tortfeasor, f01' the amount of the eompel'ls:3.tion benefits. WOR'K.~
§ 29, ..
MIUif'S OOMPENl">I\,TJ:ON LAW
Glpenn, R.R. v. Stineman CoallvHlling Co" 242 U, S. 298 (1916)
§t!!ese
9; Helf~itt should
cases Y. be distinguished
N.YJ<l',H. & H, R.R., 284
ftomN,those
Y. 117,29 W.E.admlnistrativ'C
requiring (2d) 641 (940).de-
tltrmilllatJlo!ls where resort must first be had to the Interstate Commerce Com-
Mission, Midland Valley I·tR, v. Barclay, 'Zl6 U.S, 482 (1928); U" S, Naviga-
ti01l1 Co, v. CUll<ll"d g,g. Co" 284 U. S.474, 481 (932).
M,IMINIS1'RATIVE AGENCIES 29
preparation for actual contact with !;he agendes. Many tedmiques
at administtative practice can be learned only by experience, just as
skill in the trial of ell,sea ill court can be developed only by the adtlai
conduct of numbers of trials. But there is always the first experi.ence
with 3, regulatory statute or with wy admini$trative agency, and
then~ are: safeguards, t.he obsel'ValU!;e of which may be helpful while
experience is being acquired.
At the outsetp· it is essential that one 1o.10W,~ that his case f.alls
within the terms of the statute, I sometimes \l1Tol.UlerhoW' we acquire
consciot1sness of the existence o£ the various :regulatory statutes.
Very f.ew, if any, 1a'1N'Ycrs can conceivably read every act which is
passed by Congress or by a state legislatltl'e; nor do most lawyers
read a list of new laws adopted at each session. We are l1.1everthel(~ss
familiar with the existence of tax laws, corporation laws, and similar
statutory areas, and we have become accustomed to the regula,tion of
business slUch as carriers and utiliti.es. By reading the newspavers
and legal Iitet'ahm~, we lea.rn aOOtlt new statutes or at'ca.s of :regI11a-
tion. If our dients are engaged in specific lines of business. we get
to know that various statutes are applicable to them, After a. while,
we become statUlte~n::Lindted, ,so that there is very often an il1sltinctive
feeling that answenl to certain types of questions may be found in
III statute.
Very often, also, the statutory nature of the problem if) apparent
trom the problem. itself, In asking for advice; the cli(~ntoften knows
the area in which it falls. A businessman may ask whether he may do
certain things under SEC regulations. An employee who is injured
may ask whether he is obliged to limit his claim to compensation
benefits. Sometimes the case itself originates from a d<elll1and or
inquiry by an agency. There are times, however, when both the client
and the la'vvyer have no realiza.tion that there is a regulatory or ad-
ministrative aspect of the case. For example, immediately before ou,:
entry into the war in 1941" and even during the ea,rly stages of the
wal', many people were unfamiliar with the fact that funds and
property of foreign nationals (even those who were not enemies)
were subject to the freezing orders. Situatiol1s arose where p~oplc
i 49 U.S.c. were startled to tearn that licenses were necessa.ry for certai.n trans-
actions • .Ab01~t aU !:hat one (Can do i.n this respect is to keep bl"Owsing
around acquiring information, .and anti.cipating that as a part of th.e
investigation of any question ther.e may be a statutorj aspect.
30 GENERAL PRACTICE AOMINlSTRA'l'IVJ.: AOENCHF-S 31

r ecJmifJt411J;n
•••••,.-,~-.._-"'''-.....-..---"_."."
Investegating the 'l..tHlJ
•.'''''" •.,'''<",''',."''-''"',,.,.,._''--", .•.".
through the statute and the regulations and at least some of the charac-
teristic orders ox an agency.62 After this, is done, the lawyer may re-
When the problem is denned, there arises the necess~ty of coping
turn to those provisions which he believes of immediate hnportance
with it. Various methods :may be employed in findingJ;be law. One is
to his case. This process is like examining a map, when visiting a new
th~ece;;Tapp:roach'nconSiif;ring·-;;-speci£c -case,ltls poSSffile; dty, to get the ge:neral1ay of the land, and to find out which is north
by an -;:uminaftioii-oTthe index: to a statute and acttninistrative regu-
and which is south, and the relatioltlship of one's hotel to variou.s places
lations, to lind references to specific sections of the law and to spe-
in that city, instead of going around blindly without ~,nyidea of
cific regulations which appear to be app~icable. It is likewise I!g~§~ble direction.63
t!u·e~!Jh.~~..1£~!!~£~,~...!~~
__
~~gU!~~.~~~!.-~~_.!4ouih
tii~l.,_~~.1.:~,.Jln-
-
related to any statutory
_-'_.,.~-~'''_.''---_._._
by ..an c,camination of what.•.-;-;_._-- ..
tne courts
or agency framework,
about these provi~
~iolls .ll11d what has been said in interpretive bulletins or in agency
_---_
This can be followed
have.•. said
_,..• 1(1MJ1lJ the FaCils (ff,m:J,Sf$f'fI'OGII1'Jditi/:g C/'fcmrlslam:es

It goes without saying that a lawyer Xl1ust know his facts. In this
:ounsels' opinions. III that way, a lawyer can ~cq~r.~~..m~!.e w..Qr~~ area of practice the importance of the facts and th<eh- correlation
i!l~_,.~nowle<!~_?!J!l!:J.~..QPlkabl~;U.2
..g.Ll!_~O!~~!!te.
c,~~~:This can with the law {~annot be over-emphasiz.;d. In the adminisb:at!1/e pro-
)e supprem:ented by the hit and m~ss system of mali:lng inquiries of cess, rights, liabilities or obligations may depend on mint1tlre and on.
the agency :and following its suggestions. various lCin:::umsw:ncessurrounding a single tlf3.nsaction which might
The piecemeal method has many objectionable features. Using the not ordinarily be material 10 it. This .again may he illustrated by the
index, no matter how carefully it is prepared, is the equivalent of Wage and Honr Law.
:aking someone else's judgment about original material rather than An employer may question generally the applicability of the Wage
soing to the original SOUrce. Very often assistance can be had from and Hour Law to Ms employees and to his operations. It is possible
!efinit.ions or parallel provisions of a statute, the relevancy of whicb for certain employees of a single employer to be covered and others
s not disclosed by the index and will not be discovered if one :re.• excluded. The test of cov<eTage is not the employer's activities but
ltrlcts one's self to specific parts of the law. The piecemeal method, rather the nature of the work performed by the employee. Only those
noreover, does not give the lawyer the "feel" of his subject. It does employees who are engaged in interstate commerce or in an occupa~
lot give him an aU-embracing pictm:re of a code oi law d.ealing with Hun necessary to the production of goods for interstate cormnerce are
rarious facets of a regulatory. scheme. This will handicap him in covered by the minimum wage and maximum hours provisions of the
:hose frequent situations where the constructio:n or application of a Fair Labor Standards Act. Hence, it would be fatal to rely upon
>articular section of a statute will depend upon the underlying genera-Ii ties.
lbjectives of the statute as a whole. In short, the apparent advan- Another example may be found i.m~~~:,..!.~~~~ra~!?$~JNlth.J!!!
age of conserving time and energy and obtaining' a quick answel' to
I problem does not outweigh the real advantage which comes from 62lnvaiullble
which assistance
form a part of the may be 11l;l.d
AT'l'G1HfEY in such CO:MMl!T'l'F.E'S
GENE!!/I!. 11> surve~' from the
REPOlrf and New
l''ilonogl'.?-phuil
hI
Lctual orientation in that particular field. York State the supplemen!£ t.o the BENJAMiN :REPOllT,
It would, on the other ha.nd, be manifestly' impractical to suggest eOAnother alternative is to consult a specialist. This suggestion i.s not made
hat attorneys rl1ake exhaustive studies of entire regulatory and facetiously, nor should it betaken too lightly. There are "orne bigh1r. spe-
cialized fields in whicl1 lln attol1ley's activities win be $l> small that It just
ldministrntive systems for the purpose of handling single cases
will not pay
example, have him to make in
no besitam::y a study of the
rreferring subject.
patent mattersGeneral practitioners,
to patent £01'
lawyers. Why,
imited in scope. There is another alternative. Upon one's initial ven- then, should there be any objection to ,etaining cotill!>lcl where the field is !lo
ure into a new subject, it should not be too much of a burden to get
highly
of casesspecialized or SID
in that field narrow thatOnthethelikelihood
is negtigibllil. of recurrence
lJthe~'hand, where theretoisthe attorney
a iair pos-
, working Imowledge of the plan of the statute and of the regulations, sibility that cases will reen!', there is 2100 reason for an attorney to forego tl1!e
he natUl'\e of coverage, the ends sought to be accomplished, and the opportunity of beCOl'111ng £:lcquainted with that area. of law and earning fee!
tberefrom.
leans of accomplishment. Th:at can be done by paging or skimming
 !GENERAL !'RAcrICE All!l£l:lNISTRA1T\rE AGENCIES 33

!;j;:nemyAct.64 The status of mone~r property bekmging to a .foreign ing for a lawyer than to be caEled into a case after a client ha:; give))!
~-- or tbe :figlit_-'··r"·--···-
national,
_.- ••• __ ~ ••••••
-·---··--c·
of a foreign natiomlll
•••
..'···-·'.--....--'.--."-
to deal or have aea1t frf;':ely
_,,_,~_.,._,~~~-- __ •• _--.;;:.~,~, •• " __ ,~"",._ .' ' . " .•' __ ' ••• «~~. ·- •••""·,,_.~.w .. _.,.'·~,..···_~~_~_·_,,.~,_~~~~
casual answers. only to find that if aU th.c facts had becil iuUystated
1rli~>~i.:Jt~~:F.~!~9!j.!1~.d,§.h,may depencf'on such minutire as where with due regard to the statute, satisfactory anSWer to the inquiry
he was sit ltpa:rticada~' time, or the timle when the transaction too]{ could ha:vc been made. A casual n::spotlse, vilt1lOUt a knowledge of
i?lace. It is !.lot enough to say that the funds~rfO;eigr~~:ati~h~~were tht~ sia,rote, to an inquiry may leaq. 11:0 mis~:oncepti.ons because of the
frozen.ell' th:il:t they 'lllte fa'ozeo presently. 1l~~r!9,~;y'.cQL!);~.~:'L,;!~~,"£~ye age,ney's failure to receive essenti~l information upon which the out··
not be. depending on a variety of details, come of a case :qlay depend. .•...
The
,,"...,.•.-
,f!!rEi~hj~
.
of information to an
~r"........- ""~'-~"~-~'."'~'-"'''''''''''1l'-~---'.

T J)(Jrl!)l!5ir:fblP''i?(JPrfftl~#()t& Before ~~~Sl~~~h~thet:Jl!.!':::~?E,se ..Y'!~thJlj~

~c:_~_n;...~~lqt~.~Ii?£.~~.,E~!.1E!'5~~9n
fHin!L.Pf documents. snould ue:treated witn the same respect as one
In short, then;: must Ibe a complete correlation of 111(;: law and the '~~~ts~-C-~tl1pla:fnia1:;:dbilfOfp;;ticuf;rs::']Trs:"il~l'e'1iiaf'ffie-aknt'"i;
facts with a thorot~gh·inqt1iry into both of these factor.s.so That kind 'sfOfY1s~ioId;~'an(fcareiessne'ss·~or'1iJ.iui:(t:to put the (lest foot f'1rward
(Jf prep!llrati.rllU on the law and the facts should take pl:a.c(: at the may lead to unfortunate .consequences,
very ir41:eption of ,a ca~e, The case should be cOlJl.sidered a.s havitlg
~"(trs()nalCtni1#ttcf; with ~gen&y'
staded even when it is in the sa..ca11edinformal stages. This an-
formal stage.may start with a,n inquiry trom an agency for h»forma- Up to this point, t1u::rebas, of ,course, been no personal !contact
l:ion. It nuty COOllinence ~l'iith,1 'Visit from an inspector or' other repre- with the agenq or its representatiwcs, <lend that is :another step. It ~s

sentathre of the .agency. The case may start with an appUcatici~ Dr only v.'hen he is arrn.ed with knowledge of the law and ;of the facts,
when :a ;registration is filed. Lawyers should not be misled by the ap .. that the attomey is prepared to meet the administrative process. In
pea-ranee of infomll.lHty. The informa.lity as a rule lies in method and dds respect, an attorney should know as lIDuch about the law pertain··
:not in consequence. VVhelJlan agency .makes an investigation, that jug to a case 21.9 the ag:ency d0CS, and shouM be able to educate the
inqu!1-Y :f.oUows a. definite plan and res~lfts in a definite outcome, agency on the facts of the case.
WheJ1l, foI' example, the Federal Trade Commission submits a Discussions with agency representatives require good advocacy.
stipulation proposing that a merchant admit his violation. of Jaw and The purpose of advocacy is toO convince someone else, and one of its
that he agree to discontinue the practkes comfllained of, i.t means elements is tne rec;ognition of what that other person is or is not
tbat tlh(~Commission has made It. preliminary b),\fest~gati911. l:l11d is authorized to do, aud the reoognition or the function which he pelfc>

prepared! to proceed with a complaint if the stipula,tion is no.t signed. forms, Another element of advocacy is to put the other person ill a
The terms of this stipulation '1-re subJect to negotiation, lIlnd the reoeptive frame of mind, Sinc<;;tinl1ny attorneys do i!lot like the
qiscussions which take place have all the ll.ppe;l.rances or ailY con- administrative process or adlitlinistJTatave agencies, t1'H:~Y either show
ferenoes when~in private litigation is settled ..But when the stilP1,dation tbeir disapprovalolJlen1y, or, in an ('!ttempt to concelli tJh,at emotiollli,
is signed, it (;arries seriQLlS implications. become servile. Sometimes an attomeyis overawed by the apparent
By the salfoe token, when any agency asks for information, its power of an agency a,nd the apparently limitless power of the pelI"son
request should not be treated casually. There is 1l10thirlg :more. annoy- with whom be di.~als. Any of these attitudes are bound to lead to
unsatisfactory resub and uufortunateexperience's. In dealing with
64See .a1note
E'~81n:y 47 s"ttpra;
ct (194\11), Bishop,!!J.l.ttclidal
62 HAllV. REV. 721,C(}n.s:tnU:lion of .the Tracl·iHg WWI tke agendes, one has the same problem as deal.irng with any ::ldv.ersaries
G6AltlIOUgh "tbe exampl~s chosen may be more vivid, the same principle or with courts. The people we deal with are human beings, 2.nd a
applies ill 'A'espeet of fleacelime l'c~lat~ry nnea!lUrC6. The seUer of inercl1andise good adyocafte always takes that into consideration.
QOl:S not i!.':orne within the iu:risdictlon of tile Federal Tm,de Commission ~1tiless
An agency is !lot something which Olle likes or dislikes. Jt is ;a:n
ne is engaged
within the W<l,ges in int.erstai:e:
and HOtlls COOW1erce. Thathe slime
Law beClluse sellergOOd~l
pl'oduces may. "for
however, tome
commerce." l;>1strometlta1ity which must be. deaJ1t with for tbt~ accomplishment of
These odif/-erences in the wording of statutes and in, factlllai ciI1(:umstam::es Illll1lY
WIl'>lldl.lc(i) 1l'i:ide wal'iations in rigbts and obligations. a result. If an attorney know:s his law and his facts, he is on fa.irily
34 GENERAL fRACTICli\:
lafe ground, The agency representative, it may be assumed, knows
the law which he is adl'ninistering, but it should not be assumed that
!Ie is familiar with the facts of .any particular casco Consequently, an
attempt should be made to talk in the agency's languZlge, to wit, the
statute and the applicable regulations, and to present the facts in
t~lat teind of laugml.ge.
1f a statute pl'ovides that an employer roust pay overtime rates,
there is no purpose in arguing with the agency representative that
tIne statute sbmdd ll10t have been passed, or that it is unf.air. There is
nothing he can do about it. If a regulation is in effect, is consistent
with the .statute, has been properly promulgated :and has the force 01
law, and there is a claim that it has been violated, nothing can b~
accomplished by taking the attitude that agencies should be abolished.
That kind of an attitude just is not good advocacy. Ukewis~, there is
little purpose in arguing tbat the rule was unjust or arbitrl1lry so far
as the past was concerned. One may, however, argue that the rule
should be changed for the future, or advocate a construction bene~
fidal to the client. Or it may be possible to adduce facts exculpating
the client or mitigating the wrong, and to obtain a result st1ccessful
im. greatell' or lesser degree.
011 the other hand, if the attorney ~~~s..!~~.,Men.£r~_~~ter-
pretation of a statute is erroneous, 01' that sonae regulation is im-
proper·~becawelfTs·1iiConsrstentWithll1esTituteor·1mSbeenTm-
f~~-~ga~-;'~~':~~9i!~j2Jtl~:~~P.9~~~~~~~!:~!ing
hl!U>.Q~~)lnrn!1tJL1J.ia:]i1§JIr9-1fE.~..Just ~,~~.~!?~1E..!S!?l;!lEQ.~!,f!,
If an attOi-ney believes that the facts and law favor his client, there
is no more reason for: him to yield to adrnil.1istrative action than for
him m:mecessnrily to yield a point in court. But advocacy of the law
or of the facts is totally different from wrangling, or from failing to
recognize that all administrative agency has its statutory function to
perforn:l just as a court acts in accordance with law.
In short, the presentation of It case in the administrative process,
wneth!~r it be in a. preliminary proeeedil1g' or in a hearing, should
follow the same kind of advocacy as is adopted in the trial. of a case
before Ii eou.rt or a jury, 'There are times when, if» the exercise of
Judgment, it is more beneficial to the client to yield than to stand on
his rights, The e}{lerdse of judgment in Stich 11. case is no different
from settling a case rath.er than going to the expense or risk of
a trial. Indeed, many administrative proceedings are ei~her informally
ADl\UNlS'rRA:fIVE AGEN(.1:ES 35
settled on the regional level or before reaching the principal office of
the agency, For example many tax disputes may be adjusted with the
Internal Revenue Agent in Charge, or with fbe Technical Staff.
One dalOger to be avoided in agency negotiations is the making of
concessions and stipulations which may operate as an estoppel i.f for-
mal proceedings or court action should later be required.
BcJO'fd3 Agl9tltt1i&$
There are a !:lumber of types of proceedings before agencies other
those which assume the appearanr.e of ~l CO\u:t trial. We do not
thlJltl
usually think of them as proceedmgs, !but in fact they axe ju.st that,
When an application is :filed to publish a rate under an Interstate Com-
merce ComuLisslon regulation, or when there: is an administrative in-
vestigation about compliance with the law, the process should he
viewed as a proceeding. The facts are prtsented in a manner correlllted
with the law and there is :adecision of some kind, The decision may be
to grant the application 01" to deny it. The decision may be to prosecute
a violation or to discontinue an investigation, The result is some ad··
ministrative action having very much the same effect as though a
formal hearing had been had,
l.awyers often find themselves on mox'e familiar ground when an
agency proceeding takes the form of 2 formal hearing. The attorney
in such a hearing l1as a liVh:lg advers~l.1'Y, whether it be the Govern~ "
ment attor.ney or counsel for a private litigant; there is 'Usually some
form of. notice which has tne feel of a.complaint in a law suit, there
is some kind of an answer, and an issue is presented. As a rule,
a1tl!lOugh not always; the hearing takes plate before a :referee or
an rxamil1er. Evidence is adduced through witnesses, documents are
offered. and the parties are entitled to cross-examine adverse wit-
nesses.
Although the form which such a hearing takes is like a trial in a
courtroom, the tccbniqtlCS are different. The referee or examiner is
. usualIy not, although he may be. the person who makes the u!timate
!. commissioner to maintain order, to one analogous to that or a referee
. or
I
withmaster
~dedSion. who function
opinion.
HiG is appointed
may by f:rom toone
varyat !Court tliZke testimony a.i.d r<eport
analogous to that of a J
Practice in these hea:rings varies frol11 agency toO agency as much
36 GENERAL PRA(,'TICE
ADMINIS1'RATlVg AG.ENCn:S 37

as any ot.i}er procedures do, and it is advisable for attOl'ileys to that in a trial before a jury. Before a jury, it is importan.t to sustain
familiarize themselves in tach instance with the f'lmction this official
interest by a series of climaxes. In an administrative proceeding, the
is to perform. In some cases, the examin<er 01: referee makes findings intellest must come irom a logical. detailed exposition of the :facts.
whidl arc served 11pon the contesting parties before submission to
Despite statements
to the contra.I')', cross-examination has a valid
the board Or commission. In those cases, the adversary pat1:ies may
place in ~n administrative hearing. Obviously. in those rare ~~lSt2.11ces
be entitled to file t"ceptions and briefs, and to arg'ue the case orally
where 2. determination depends upon thee memory of witncl-l!les, Cl"OS!;!-
before the board i:oJ!,m:j:aisSlioil, In other il.1st.mces, briefs are sub-
OK"
exam~nati()n is as important :as it is in any other kind of filtdat Even
mitted to the trial eXlllminer, w'llo thereaitcl' submits his report to the
where a determination does not depend upon recollectioillll of :II
board or commission in the first inst:'l11ce, and the parti.es have 110
witness, one luay, by cross-examination, destroy statistical inJonna.
opportunity either to contest the proposed decision 01' to have oral
tion or opinion evidence by demonstrating either bi,iS or £<).Uacy,
argument before the deciding body. Sometim.es provision is made
for an application for reargument on the commission's oed.slon. There are many instances in which admissions may be wrung: from
:a witness with a greater resultant effect than if affirmative testi~rwny
were presented, How<:ver, th<It type of cl'oss-e:x:amil1atiol1 w}.1icb
VJF~·;'ttenlPacJrtlatRlJlCOrd Pm'amemnti
"tJt",__ "' •••. _~.""_._.~J'------_.~--, __ ,._ .-..
does not go to the heart of the issue should be avoided, .Administra-
Whatever the exact procedun:: may be, it ~~!li,~!W.!YJLJ?~~~.P! in tive officers are usually not impressed with collateral attacks upon
wi.t1'!,esses' credibility or with the type of cross-ex.amination which
mind that the written record is the thing that counts. There is little
occaSfonxor'oratQfy"orforenmcskirre;;:cept lathe extent tha.t a good merdy embarrasses
.v·_--~""'"
the witness but does :not destroy his testimony.
factt1all'ecord can be made or a point of law dearly presented. Since
the agency has a limited function-that of applying the statute--
ministrative proceeding wiII not be reviewed by the courts if ~~y
the hearing must be directed to factual proof that a client's contention
is correct under the terms of the statute.
\~" reasonable
One m\lstsupport
never forget thatahetherecord.
exists in factual This
findings
factormade in th.t
imposes1tpon ad'-l\
j tbe advocate 111e burden of being especiany well preparoq ~tJP of
A good record is one which is both dear and easily inte11ig'ible. It
should contain an relevant facts, correlated so as to provide justifi.ca~ proceedinghisfor
\knOWing case especially towell.
attelnpting get by withis ap.o in this kinqof
room prppar~d
poorly a
c;r.lle. A !h~!~
tiOll of the claim in terms of the applicable l<1.w. Wherever possible,
advantage should be taken of an opportunity to present data in writ~
ten form. Statistical or financial data, where relevant, should be bal'e
eiore
verya jury.
~Iprim.afacie
..,."...:
small.
caseItswith an adorhominem
cba.,ces success in the l.I.cl!:ninistrative
argument proceeding
may 80metlrpelJl'ir~t by
'~'--"'~'- ...•

reduced to writing and offered in exhibit form. Conventional rules

:tmVIlJJ:''('i{l'
of evidence are not observed in administrative hearings, but this
should not bothen' us. It should be looked upon, rather. as an Opp01''' When administrative remedies have been exhausted, resort t«> the
bmity to exercise our resourcefulness and ingenuity in presenting a
good factual case.
courts may be
......." .•'~""'

Ii~(nnstancei.~
..•.
costIy
••. 4....-
nnl.! av~ilitgtt
_,,..•,, ..•.••.....• _#_~"',,.-.:,.~ •..•..
althottgh it~.•.__is
~..,.. _'.,.".,
....•...
~",
IS successful
...•~" __

The subject of judicial review is perhaps the most

•..
"_~~•..
"""'- _.,,'"
.....
_,._~'..~~.....
011J.y i.1
.•...

,~\~
./1;;;..·..··
The kind of' skill reqllired for trying cases before an administrative
agency is similar to the aptitude essential to preparing fadual briefs.
intriguing-and most difficult- ..aspect of administrative law. Bdefly
some of the principles may be summarized as follows: f\
Emphasis must be on the presentation of facts in a convincing ~,.L:t_W.h~l].~~~~te
js_~~~,~~s.~~il!fIt!!:i£~!!.t:.!!.t,i.on~t2!,!Q..t
fashion which wlH l'eGl.d well from the l'ecord, rather than on putting S:~~~.~~.~.~r
...~.£~~9}n~·.~!:~J?0:!:e~~.
".. -ag<:.~C[.~"J:~~!]'~<!..~i!El
all a good show. Since the verdict comes after the record is read, st~ti.ltea review may be had i!:1,Jh~s?urts;
rather than after a fleeting impression which may be created during
~,_ • .....-' '''--''--_''_'~"''''_'''-_~'"'''"~_~''"''''' __ '~'''''''' -. _', ..'" .•.••0·",'··,"'''-,''' ••._,-
·1\-"--
<'~?~
(2) Administrative remedies must be exhausted before com:t
the COUrse of a trial, the technique must be entirely different from --~proceedIngs c;n be li:i3titutea~-r.e:,-"aITsfepsprovide(Clorin
---~-~---------~--- ..._--_ ..,.."".._._---~~¥.....
----",,,-,---., .._._.~
...-
38 GENERAL PRACTICE
ADM1NISTP...ATIV!;; A('..,l';Ncn:s ~~9
the procedural rules and the statute must be followed (except rk~
.••.••...•. ..-.--.----- ----
. in the instance described -. in (1) above) ; ----'
------ ~~
Whether
CQ~CLltTSiON

,we like the administrative

____...•.__ ,,_.-r- •
or it has become
(3) The courts will treat, as conclusive, :administrative determina.- procl:'"ss ulOt,
a large factor in our sodal and economk system; and whetber we
relevant evidence as a reasonable mind might accept as ade~ / !ike it or not, .a good part OE our work is in the administrative law
fidd.
quate to support a conclusion" ;66 \
tion of fact supported by substantial evidence, i.e., "such \ 1 At the OUtf.w:tt the noti.ce was given that cO!l1:'ltdemtiO:tls of the
utility; strengths and weaknesses of dle administrative device in the
~ nations of t.heh' own jurisdiction) are but not ,,/
.<--
~(
1.')1'
, 4.) ~\" ~" -..
•.. determi--7~/
,A_.d~r:a.1!!.'!L~rroi~!!i2~I!Jl!J.?J'!L.•.(other than .. -- ---.- --- --- - •..•...
,-
operation of government weR'Cbeyond the scope of this MOllog;:apll.
Frequently the concern expressed :about administrative )aw :Mnd pro-
(5) C~ types of agency acti.on, by the terms of the creating . cedure is merely a reflection of the disquiet created by the fact that
statute are non··reviewable.
Government has cJttended its activiti(~s into new fields. Likewise be-
Secg.'Q>~Ll.Q.9iJbe
, Administrative
"-~.~_~, ,_, ..,,__,_··~_,··,,··-'., ..n,,"· .. Pn'o(~~dure
" .' ,",.-.••As;t .'. pn~vides '.''''.'' that ex-
yond the pUlrView of this discussion have been9!1Jl~ti.Q!!i~)i3hether,
~..-' - -'. '"

~~,Ptwhe;!.~!:!tutepre~!!!.<!~!~!.~~_!r_~~t~.!!!~,
..~~!l..9',,~~~!C?!1-~;J)y and to vl.h.:i!.L~~E1-..g!:!1iergmel1t-l1hot~lg.I~g!:l.!~ls~.l~!jJ''.lJ~_i~"t~~~~-~t§
...9.!'.
1.~~~tl;!eAJ9.A~~.c:~~.~!~~!':.~_:!~;y_l~!~!l~'l~!~£!mgJ~£~!~Lo.ngeconomic or soda! a~!i.!~!!!:~Uh.~Q}!glt~b~_~~)iQLQ.~J!tc:..~miEjstratiy,e
~.~caE~ ..Q~lW.J£Y: actiQ~_Q~_~~.!~!~~L~1.!~~~~.~: ...1!.ggrt~Y.~
...
~y.~!:'!.fh p:toCess"6FoUier~vise. Debates on these aspects of administrative law,
\vhile-'l!SseiifiiftoHle'darification of policy to be followed in OUt form
~ti.~~jth.!E .. !!!.~_!!!~!!lli.K_t1L~!!r.~l~!~~.~~~~~~~~h!l1t~~~.!:~!~t~~~Jo
luctldal review thereof~' A difference ot OpIniOn has a1'1sen concern- of society, tend to obscure, rather than clarify, tbe actual machinery
tngThe clfect"or this section of tbe Act. It appears to have broadened by which the administrative process operates. It is with this machinery
substantially the area 0:£ judicial review-,!lll On the other hand the that the practising lawyer is mai.nly cO!lcemed when he represents a
contention has been made that the Act does no more than codify the client JJl.A...t~J!£r£t~..£~-"
existing law on judicial review. In a recent casell!! reviewing the Practising in thte field of tbe adlniniatl".ltive pl'ocess is hard work.
implications of the Act the Coud said: It Jacks glamour. It l'equires a greater llttcntion to detail than many
"We do not view this particular direction [judicial review] otber branches of practice. Yet as one goe.q <lllong, the statutes and
as one requiring us to go beyond the limits now g'cneraJly approach become more famiHR.r, and procedures become more routine.
recognized under the so called 4suhstantial evidence mle,' or In this area of practice, the o'V'<er-aH pattern is of pl'imary imper ..
to weigh tbe evidence and substitltte our owr. judgement for tance. Thete should be little mystery in the administrative process if
that of the administrative agency." its pattern is constantly kept in mind, and if. that patter!, is applied
to each specific case.

IlGSee Sttbstmdial
Stasoo, CAIU10W, THEE7Jidence
B.AC!(GOOUNJl Law LAW
0[1' ADMlNIS'CMTlVE
it! A.dmiMistratl'llt: (1943),1>p.
(194,1),89 U. of 138-166;
PA. L. "-
Rnv. 1026; BlENJAMXN RENlR'f at lP'P, 328-J40; United States v. Morgan, sl4pnt;
SEe v. Che.ner)' Corp., 332 U.S. 194 (1947).
67See Consolidated Edison Company v. NLRB, 305 U.S. 197 (1938). But under
the Administrative Procedure Act tbe Court must look not only to the evidence
presented by the agency but to "the whole record."

tiae tax field

SSItl (Dobsoll
Court the change in320
v, Commissioner, j)ower of reviewing
U. S.489 decisions
(1943), was of about
brought the Tax
by
amendments to the Internal Revenue Code and not by tIle enactment of the
Administrative Procedure Act. Wright-Bernet, Inc. v. Cormnissioner, 172 F.
(2d) 343.345 (C.CA. 6tb, 1949).
{\9Wm~'pojnt Oysters, Inc. v. Ewing, Cc.A. 9th, April 29, 1949.