REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00105.x |
| Published date | 01 October 1948 |
| Date | 01 October 1948 |
REVIEWS
THE
FEDERAL
ADMINISTRATIVE
PROCEDURE
ACT
AND
TIIE
ADMINIS-
TRATIVE
AQENCIES.
Edited
by
GEORQE
WARREN.
[The
New
York
University
School
of
Lnw.
1047.
vii and
012
and
(index)
17
pp.
$7.50.1
Tws
book is the result of a series of meetings held by the New York Univcrsity
School of Law to consider the effect of the Federal Administrative Procctlnre
Act. It
is
a print of the twenty pnpers rend and of the discussion which
followed each. Six of the papers are genernl, on the legislative bnckground
of
the Act (by Dean Vanderbilt), thc provisions relating to rule making, adjudi-
cation and judicial review, and an nnalysis and criticism of the Act. Thc
remaining fourteen papers are concerned with its effect on individual agencies.
The speakers are in their own spheres
nll
experts, either prominent in the
acadmlc world or senior officlais. of or distinguished practitioners before the
various agencies. Some, like Prof. John Dickinson, combine distinction both as
writers ahd practitioners in administrative law. The papers
were prepared on a common scheme but without reference to each other, and
not all of them are of equal merit, nor
is
the discussion always illuminating.
Conflicting views are expressed in different places with equal certainty and
sometimes without full reasoning; but, if these conflicts can be counted a
disadvantage they have been turned to good purpose since the scope of the
index and the care with which it hns been compiled make easy compnrison
possible. Indeed, the difference of approach of the various spenkcrs.is one of
the great merits of the book; by no means ail nre friends of the Act, some nre
critical of pnrticular provisions and others, like Dr. Blachly, violently attack
it
both In principle and detail. The discussion
is
certainly not one-sided and
this diversity together with the strongly practical blas of the mnjority of the
speakers, makes the book an appreciation of the working of the Act of great
value, particularly to
a
foreigner acquainted with the general problems which
the Act was intended to solve, but less well versed in thc detniis of American
administrntive ngencies. It would, however, be unfair thus to limit the value
of
the book.
The general purpose of the Act in hying down n minimum standard of good
conduct
to
be observed in rule making, and adjudicntion by administrative
agencies is clearly brought out. The Act requires publicity for the organisa-
tlon and procedural requirements of any agency, the consultation of interested
parties in rule making, the separntlon of the functions of prosecution and
decision in hearings, and that decisions shall be reasoned and public. None
of
these general requirements are, of course, without important limitations
and exceptions, and the extent of these limitations
is
emphasised in the
lectures, as
is
the fact that the justification is in many cases not theoretical but
the necessity for
a
compromise to secure the speedy passage
?f
the Act. The
book
Is,
however, more than a mere commentary; it illustrates clearly the
atmosphere in which administrative law is discussed. Frequently the dis-
cussions reveal a suspicion of administrative bodies such as thc belief of some
questioners that compliance with the Act will be purely formal and thnt secret
instructions will stlli issuc to examiners.
This
suspicion mny well die slowly
but its death can be hastened by the other attitude here disclosed, of a pleasing
readiness of agency officials generally to observe the spirit
of
the Act even when
not compelled by its letter. The predominance of this spirit is in strong
contrast to thnt of Commissioner Aitchison, of the Interstate Commerce
488
There are inevitable disadvantages in a book
so
produced.
OCT.
19.1.8 REVIEWS
489
Commission, who
is
reportcd to
Iinvc
snid,
I
think we should take the rules as
tlicy stnnd
ns
oiir
bnse
nnd continue to enforce them until it
is
shown thnt it
is
irnpcrntively neccssnry to clevinte from tliem
’,
Gcnernlly it
is
evitleiil
Ilitit
the Act
Iicis
litid the effect within udministrntive
ngciicics
of
‘quickening tlicir sense of responsibility townrd tile achievement
of
soiind government
’,
nntl
tliis, with the cnrefiil nnnlysis of its functions which
it
lins
coinpellrcl encli ngency to iiinke,
would
done
litire
justificd tlie Act.
Tlint
it
lins
done niorc already
is
evident. Iiiintediiitely tlie provisions for
publicity for procedure nnd organisntion are probubly the niost vnlunble in
taking the. iiiystery out of udininistrative law
by
iriuking tlie wliole body of
it
rcndily nccessihlc to parties and students. Without this mystery niuny of the
prrjiitliccs nntl obstncles which obstruct
n
calm discussion
of
the subject must
yo,
lenving
n
good
prospect of proper development bnsed on
a
fuller knowledge.
Tlic
find
mcnsure of success of the Act cnniiot yet be judged; the
spcnkers clcinonstrntc the ambiguities nnd dilticiilties of definition which the
.4ct contnins, such as tlie cxact scope of the judicial review provisions or the
interpretntion of such phrases as substnntinl evidence
I,
and until these and
other doubts of major lniportnnce nre solvcd by judicial interpretation it
will
be
too enrly to say with certainty wlietlier tlic Act has unduly fettered the
trdministrntlon
or,
on the other hnnd, whether it lins provided sufficient and
satisfnctory methods of control. Equally the developnients niny depend greatly
on the nttitucle of thc ngencies themselves, wlietlier they act in the apparent
spirit of tlie mnjority
or
in n reluctant restrictive one. The latter spirit
could turn the Act into nothing but
II
fruitful sourcc of litigation, but
nt
worst
it seems rinlikcly that developments
will
justify the strictures
of
Dr. l3laclily.
Indecd in
u
sense it will not mutter
if
they do, for the spenkcrs make it dear
that tlie Act
is
not
to
be
regnrdcd as finol, but as tlic beginning uf a new
systcm of procedurni law tlie working of which must
bc
exniriined froiii time
to
time from tire point of view of both udminislration
niid
public. It
Is
the need
for intense study which Mr. McFnrland placeb first in his nnalysis of the Act.
It
is
possible that the Act mny be remembered as an experinient rather than
for its pnrticular provisions, and it
is
in this respect that the book has most
direct interest for English readers. It
IY
true thut it is mainly concerned with
the independent regulatory commissions, and tlie solutions worked out for
thcm ore not necessarily npplicable here. The system of hearing examlnera
wliosc decisions are cnpable of becoming finnl underlies much of the Act, and
there are obvioiis difficulties in applying such
a
system where the doctrine of
ministerial responsibility to Parlianient prevails. Yet the problems of both
countries nre similar, as
is
shown by Deon \‘aiiderbllt in his introductlon, and
nn English reader cannot help feeling both envy nnd regret.
No
doubt
the
Committee on Ministers’ Powers caused heart searchlngs within administrative
bodies both during tlie prcpuration of ovidence and
ns
a
result of tlie report,
tiiid, outside these, gnve impetus to discussion, yet the
time
thab Iias passed
iind events which liave hnppencd since tlie report have blunted its effect
as
a
stiinulus to oficinl conscience,
a
process hnstened by the general neglect of
its
recommendations. Tlie worst features of such cases
as
Blackpool
Corporation
v.
Locker
can but excite doubt, nt lenst, whether
a
right sense of responsibility
is present in nil branches of the administration, nnd point to the need of some
Iirond iiicasrire
here
siinilnr to the American Act.
In
contrast the Attorney-
Gcnernl’s Conrniittee on Adininistrntive Procedure
Iins
heen quickly followed
by this Act which, since it both rccognises nnd nttempts to regulate generally
ndministrative law-making nnd adjudication, provides
a
continuing standnrd
by which such actions can be judged and
n
continuing reiiiinder that ease of
working cannot be the
sole
aim
of
ndmlnistration. The present work can be
recommended therefore not merely as an exhaustive commentary on the Act
with which it denls but
nlso
ns
a
study
of
an attempt to solve problems which
in
n
slightly different shape still call for some attempted general solution here.
J.
1).
B.
MITCHELL.
VOl..
11
rn
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