Law in Action: The Attorney General's Committee on Administrative Procedure

Journal of Policy History

Volumn 20, Issue 3, 2008, Pages 379-418

  Grisinger, Joanna ^a  

^a CLEMSON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 79958471434     PISSN: 08980306     EISSN: 15284190     Source Type: Journal    
DOI: 10.1353/jph.0.0020     Document Type: Article

References (167)

1. President's Committee on Administrative Management, Report of the President's Committee: Administrative Management in the Government of the United States (Washington, D.C. 1937), 32. The literature on the changing American state and the rise of administrative capacities is extensive.
2. Robert H. Wiebe, The Search for Order, 1877-1920 (New York, 1967)
3. Louis Galambos, “The Emerging Organizational Synthesis in Modern American History,” Business History Review 44 (1970): 279-90
4. Thomas McCraw, “Regulation in America: A Review Article,” Business History Review 49 (1975): 159-83
5. Alfred Chandler, The Visible Hand: The Managerial Revolution in American Business (Cambridge, Mass. 1977)
6. Samuel P. Hays, American Political History as Social Analysis (Knoxville, 1980)
7. Stephen Skowronek, Building a New American State: The Expansion of National Administrative Capacities, 1877- 1920 (Cambridge, 1982)
8. Thomas McCraw, Prophets of Regulation (Cambridge, Mass. 1984)
9. Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass. 1992)
10. Sidney M. Milkis, The President and the Parties: The Transformation of the American Party System since the New Deal (New York, 1993)
11. William E. Leuchtenburg, The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt (New York, 1995)
12. William J. Novak, “The Legal Origins of the Modern American State,” in Austin Sarat, Bryant Garth, and Robert A. Kagan, eds. Looking Back at Law's Century (Ithaca, 2002), 249–83
13. Daniel P. Carpenter, The Forging of Bureaucratic Autonomy: Reputations, Networks, and Policy Innovation in Executive Agencies, 1862-1928 (Princeton, 2001).
14. On executive reorganization efforts, see Barry D. Karl, Executive Reorganization and Reform in the New Deal: The Genesis of Administrative Management, 1900-1939 (Cambridge, Mass. 1963)
15. Richard Polenberg, Reorganizing Roosevelt's Government: The Controversy over Executive Reorganization, 1936-1939 (Cambridge, Mass. 1966)
16. Barry D. Karl, “Constitution and Central Planning: The Third New Deal Revisited,” Supreme Court Review 1988 (1988): 163-201
17. Peri E. Arnold, Making the Managerial Presidency: Comprehensive Reorganization Planning, 1905-1996, rev. ed. (Lawrence, Kans. 1998).
18. On administrative law, see Walter Gellhorn, “The Administrative Procedure Act: The Beginnings,” Virginia Law Review 72, no. 2 (1986): 219-33
19. Walter Gellhorn and Kenneth Culp Davis, “Present at the Creation: Regulatory Reform Before 1946,” Administrative Law Review 38 (1986): 511-33
20. Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast, “Administrative Procedures as Instruments of Political Control,” Journal of Law, Economics, and Organization 3, no. 2 (1987): 243-77, at 246
21. Gerald M. Pops, “Administrative Law as Public Policy: The First Fift y Years,” Journal of Policy History 2, no. 1 (1990): 98-117
22. Morton J. Horwitz, The Transformation of American Law, 1870-1960 (New York, 1992)
23. Marc Allen Eisner, “Discovering Patterns in Regulatory Change: Continuity, Change, and Regulatory Regimes,” Journal of Policy History 6, no. 2 (1994): 157-87
24. Ronen Shamir, Managing Legal Uncertainty: Elite Lawyers in the New Deal (Durham, N.C. 1995)
25. George B. Shepherd, “Fierce Compromise: The Administrative Procedure Act Emerges from New Deal Politics,” Northwestern University Law Review 90 (1996): 1557-1683
26. James E. Brazier, “An Anti-New Dealer Legacy: The Administrative Procedure Act,” Journal of Policy History 8, no. 2 (1996): 206-26
27. Nicholas S. Zeppos, “The Legal Profession and the Development of Administrative Law,” Chicago-Kent Law Review 72 (1997): 1119-57
28. David H. Rosenbloom, “1946: Framing a Lasting Congressional Response to the Administrative State,” Administrative Law Review 50, no. 1 (1998): 173-97
29. Mathew D. McCubbins, Roger G. Noll, and Barry R. Weingast, “The Political Origins of the Administrative Procedure Act,” Journal of Law, Economics, and Organization 15 (1999): 180-217
30. Reuel E. Schiller, “Policy Ideals and Judicial Action: Expertise, Group Pluralism, and Participatory Democracy in Intellectual Thought and Legal Decision-Making, 1932-1970” (Ph.D. diss. University of Virginia, 1997)
31. Schiller, “Enlarging the Administrative Polity: Administrative Law and the Changing Defi nition of Pluralism, 1945-1970,” Vanderbilt Law Review 53 (2000): 1389-1453.
32. For early work on administrative law, see A. V. Dicey, Introduction to the Study of the Law of the Constitution, 8th ed. (London, 1915)
33. Woodrow Wilson, “The Study of Administration,” Political Science Quarterly 2 (1887): 197-222
34. Ernst Freund, “The Law of the Administration in America,” Political Science Quarterly 9 (1894): 403-25
35. Frank J. Goodnow, Politics and Administration (New York, 1900)
36. Goodnow, The Principles of the Administrative Law of the United States (New York, 1905)
37. Thomas Reed Powell, “Separation of Powers: Administrative Exercise of Legislative and Judicial Power (II),” Political Science Quarterly 28 (1913): 34-48
38. Roscoe Pound, “Justice According to Law (II),” Columbia Law Review 14 (1914): 1-26
39. Pound, “Justice According to Law (III),” Columbia Law Review 14 (1914): 103-21
40. Ernst Freund, “The Substitution of Rule for Discretion in Public Law,” American Political Science Review 9 (1915): 666-76
41. Elihu Root, “Public Service by the Bar,” Annual Report of the American Bar Association 41 (1916): 355-74
42. A. A. Berle Jr. “The Expansion of American Administrative Law,” Harvard Law Review 30 (1917): 430-48
43. Frederick Green, “Separation of Governmental Powers,” Yale Law Journal 29 (1920): 369-93
44. John Dickinson, Administrative Justice and the Supremacy of Law in the United States (Cambridge, Mass. 1927)
45. Felix Frankfurter, “The Task of Administrative Law,” University of Pennsylvania Law Review 75 (1927): 614-21
46. John Dickinson, “Judicial Control of Official Discretion,” American Political Science Review 22 (1928): 275-300
47. Marvin B. Rosenberry, “Administrative Law and the Constitution,” American Political Science Review 23 (1929): 32-46
48. Carl McFarland, Judicial Control of the Federal Trade Commission and the Interstate Commerce Commission, 1920-1930 (Cambridge, Mass. 1933). See also Rohr, To Run a Constitution
49. G. Edward White, “The Emergence of Agency Government and the Creation of Administrative Law,” in The Constitution and the New Deal (Cambridge, Mass. 2000): 94–127.
50. Ohio Valley Water Co v. Ben Avon Borough, 253 U.S. 287 (1920)
51. Crowell v. Benson, 285 U.S. 22 (1932)
52. Ernst Freund, “The Right to a Judicial Review in Rate Controversies,” West Virginia Law Quarterly 27 (1921): 207-12
53. E. F. Albertsworth, “Judicial Review of Administrative Action by the Federal Supreme Court,” Harvard Law Review 35 (1921): 127-53
54. Nathan Isaacs, “Judicial Review of Administrative Findings,” Yale Law Journal 30 (1921): 781-97
55. A. Martin Tollefson, “Administrative Finality,” Michigan Law Review 29 (1931): 839-49
56. George Wilfred Stumberg, “Finality of Administrative Process under the Longshoremen‘s and Harbor Workers’ Compensation Act,” Texas Law Review 10 (1932): 438-44
57. St. Joseph Stockyards v. United States, 298 U.S. 38 (1936).
58. See also John Dickinson, “Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of ‘Constitutional Fact,’” University of Pennsylvania Law Review 80 (1932): 1055-82
59. E. Blythe Stason, “‘Substantial Evidence’ in Administrative Law,” University of Pennsylvania Law Review 89 (1941): 1026-1051
60. Robert L. Stern, “Review of Findings of Administrators, Judges, and Juries: A Comparative Analysis,” Harvard Law Review 58 (1944): 70-124.
61. Morgan v. United States, 304 U.S. 1, 17 (1938).
62. Morgan v. United States, 304 U.S. 1, 22, 18 (1938).
63. Morgan v. United States, 304 U.S. 1, 22 (1938).
64. Morgan v. United States, 304 U.S. 1, 19 (1938).
65. “Report of the Special Committee on Administrative Law,” Annual Report of the American Bar Association 63 (1938): 331-368.
66. Annual Report of the American Bar Association
67. Annual Report of the American Bar Association 342.
68. Breck P. McAllister, “Administrative Adjudication and Judicial Review,” Illinois Law Review 34 (1940): 680-98, 691.
69. See also Samuel Kaufman, “Is the Administrative Process a Fifth Column?” John Marshall Law Quarterly 6 (1940): 1-17
70. James M. Landis, “Crucial Issues in Administrative Law: The Walter-Logan Bill,” Harvard Law Review 53 (1940): 1077-1102.
71. For more on the Walter-Logan bill, see Gellhorn, “Administrative Procedure Act”
72. Brazier, “An Anti-New Dealer Legacy”
73. Shepherd, “Fierce Compromise”
74. Horwitz, Transformation of American Law, 1870-1960.
75. Arthur Krock, “Bi-Partisan Majority Checks the New Deal,” New York Times, 23 July 1939, E3. For more on the so-called conservative coalition, see Milkis, President and the Parties
76. David L. Porter, Congress and the Waning of the New Deal (Port Washington, N.Y. 1980)
77. James T. Patterson, Congressional Conservatism and the New Deal: The Growth of the Conservative Coalition in Congress, 1933-1939 (Lexington, Ky. 1967).
78. Senate Committee on the Judiciary, Report on S. 915: Providing for the More Expeditious Settlement of Disputes with the United States, 76th Cong. 1st sess. 1939, S. Rept. 442, 5.
79. “Report of the Special Committee on Administrative Law,” Annual Report of the American Bar Association 64 (1939): 575-620, at 585.
80. “Statement by Honorable Francis E. Walter, on the Logan-Walter Bill, Now Before Congress,” Mar. 3, 1940, (for release Mar. 4, 1940), 2
81. folder-- “Legislation--Admin. Procedure Statements & Articles”
82. Samuel Graft on, “A Dull But Dangerous Bill,” New York Post, reprinted in the St. Louis Dispatch, 7 February 1940
83. folder -- “Legislation -- Admin. Procedure Statements & Articles”; A.G. Committee Correspondence; agcap; rg 60; nacp.
84. Mortimer Riemer, Secretary, National Lawyers Guild, New York Times, 14 June 1939, 22.
85. One observer, noting that the excluded agencies or attorneys who practiced before them had asked the aba to exempt their agencies from coverage, suggested that “direct or indirect contact with the actual functioning of particular agencies led to the conclusion not to interfere with existing practices.”
86. Alfred Jaretzki Jr. “The Administrative Law Bill: Unsound and Unworkable,” Louisiana Law Review 2 (1940): 294-329, at 299.
87. Landis, “Crucial Issues in Administrative Law,” 1080.
88. Crucial Issues in Administrative Law 1102.
89. John Foster Dulles, “Administrative Law” (Address at Langdell Hall, Cambridge, 14 January 1939), 5.
90. Charles C. Thach, “The Inadequacies of the Rule of Law,” in Essays on the Law and Practice of Governmental Administration, ed. Charles G. Haines and Marshall E. Dimock (Baltimore, 1935), 277.
91. See, for example, Carl McFarland, Judicial Control of the Federal Trade Commission and the Interstate Commerce Commission, 1920-1930 (Cambridge, Mass. 1933)
92. Haines and Dimock, Essays on the Law and Practice of Governmental Administration
93. Frederick F. Blachly and Miriam E. Oatman, Administrative Legislation and Adjudication (Washington D.C. 1934).
94. James Landis had criticized the existing form of judicial review. “It is clear that no one can defend today our variegated scheme for judicial review of administrative action, sometimes invoked by appeal directly to the circuit courts of appeals and by way of grace to the Supreme Court, sometimes by bills for injunction before a three-judge statutory court and then by way of right to the Supreme Court, again by a bill for an injunction before a single district judge, then to the circuit court of appeals, then by way of grace to the Supreme Court, or the variation of this latter scheme by writ of habeas corpus, by criminal indictment or mandamus.” Landis, “Crucial Issues in Administrative Law,” 1090.
95. Gellhorn, “Informal Talk” to the Department of Justice Local, United Federal Workers of America, 9 August 1939, question and answer session, 2
96. folder--“Speeches and Articles by Committee Staff”
97. Harry S. Truman Library (hstl).
98. Gellhorn to Ray A. Brown, 18 September 1939, folder--“Brown, Professor Ray A.”
99. Gellhorn, “Informal Talk” to the Department of Justice Local, United Federal Workers of America, 9 August 1939, 13
100. folder--“Speeches and Articles by Committee Staff”
101. Walter-Logan bill veto message, in Public Papers and Addresses of Franklin D. Roosevelt, vol. 1940, ed. Samuel I. Rosenman (New York, 1941), 619.
102. Attorney General's Committee, The Veterans Administration, Monograph No. 2 (1939), 83.
103. Conference of the Attorney General's Committee, 22 October 1939, 6
104. folder-- “Committee Meeting October 21, 1939”
105. A.G. Committee Correspondence; agcap; rg 60; nacp.
106. Conference of the Attorney General's Committee, 26 November 1939, 26
107. Conference of the Attorney General's Committee, 8 June 1940, 1–2
108. folder-- “Committee Meeting--June 6, 7, and 8”
109. A.G. Committee Correspondence; agcap; rg 60; nacp.
110. icc examiners included “not only those who spend a substantial portion of their time presiding at hearings, but also those who write reports in cases where hearings are not held, those who review reports, and those who serve as assistants to Commissioners.” Attorney General's Committee, Interstate Commerce Commission, Monograph No. 24 (1940), 29.
111. Conference of the Attorney General's Committee, 26 November 1939, 22
112. folder-- “Committee Meeting November 25-26”
113. A.G. Committee Correspondence; agcap; rg 60; nacp.
114. Attorney General's Committee, National Labor Relations Board, Monograph No. 18 (1940), 40.
115. National Labor Relations Board, Monograph No. 18 39.
116. Attorney General's Committee, Interstate Commerce Commission, Monograph No. 24 (1940), 31.
117. Attorney General's Committee, War Department, Monograph No. 15 (1940), 26.
118. Conference of the Attorney General's Committee, 7 June 1940, 56
119. folder-- “Committee Meeting--June 6, 7, and 8”
120. A.G. Committee Correspondence; agcap; rg 60; nacp.
121. Attorney General's Committee, Securities and Exchange Commission, Monograph No. 26 (1940), 232.
122. Conference of the Attorney General's Committee, 24 February 1940, 43
123. folder-- “Committee Meeting February 24th-25th”
124. A.G. Committee Correspondence; agcap; rg 60; nacp.
125. Attorney General's Committee, Final Report, 46.
126. Garrison to Acheson, 29 July 1940, 2
127. folder “Attorney General's Committee on Administrative Procedure, 1939-1940: General [3 of 4]”
128. Attorney General's Committee, Final Report, 51. Judge Groner went further, and suggested that an agency's rejection of the examiner's fact finding be subject to de novo review.
129. Attorney General's Committee, Final Report, 61.
130. Final Report, 69.
131. Final Report, 68.
132. Attorney General's Committee, Final Report, 61.
133. Final Report, 55.
134. Attorney General's Committee, The Division of Public Contracts, Department of Labor, The Walsh-Healey Act, Monograph No. 1 (1939), 31.
135. Attorney General's Committee, The Division of Public Contracts, Department of Labor, The Walsh-Healey Act, Monograph No. 1 (1939), 31.
136. Final Report, 59.
137. Attorney General's Committee, Final Report, 208.
138. Attorney General's Committee, Final Report, 214.
139. Attorney General's Committee, Final Report, 209.
140. Attorney General's Committee, Final Report, 209.
141. Attorney General's Committee, Final Report, 77 (emphasis in original).
142. Attorney General's Committee, Final Report, 209.
143. Attorney General's Committee, Final Report, 209-10.
144. Final Report, 210.
145. Final Report, 209.
146. Final Report, 211 (emphasis in original).
147. Attorney General's Committee, Department of Commerce, Bureau of Marine Inspection and Navigation, Monograph No. 10 (1940), 69.
148. Attorney General's Committee, Final Report, 102.
149. Attorney General's Committee, Department of Commerce, Bureau of Marine Inspection and Navigation, Monograph No. 10 (1940), 69.
150. Attorney General's Committee, Final Report, 5.
151. Attorney General's Committee, Final Report, 103.
152. Attorney General's Committee, Final Report, 191.
153. Attorney General's Committee, Final Report, 215.
154. Attorney General's Committee, Final Report, 203.
155. Attorney General's Committee, Final Report, 214.
156. Felix Frankfurter, “The Final Report of the Attorney General's Committee on Administrative Procedure: Foreword,” Columbia Law Review 41 (1941): 585-588.
157. Louis L. Jaffe, “The Report of the Attorney General's Committee on Administrative Procedure,” University of Chicago Law Review 8 (1941): 401-40, 405.
158. Attorney General's Committee, Final Report, 5.
159. A. H. Feller, “Administrative Law Investigation Comes of Age,” Columbia Law Review 41 (1941): 589-616.
160. Bernard Schwartz, “Administrative Procedure and the A.P.A.” New York University Law Quarterly Review 24 (1949): 514-534
161. U.S. Department of Justice, Attorney General's Manual on the Administrative Procedure Act (Washington, D.C. 1947).
162. Albert Clark, “Bureaucratic Bible,” Wall Street Journal, 7 September 1946, 1. Less than two months after the APA became law, however, the scope of this requirement became clear. One columnist reported that “everyone from the President down is reported to be fl abbergasted” at the costs of compliance.
163. Jerry Kluttz, “The Federal Diary,” Washington Post, 4 August 1946, M5. The Government Printing Office warned that it would have to choose between printing nothing but the Federal Register, and building an entirely new plant. Apparently “[e]ven the bureaucrats. had no idea how big government has become until they tried to comply with the recent McCarran-Walter Act.” “Lots of Government,” New York Times, 27 August 1946, 26.
164. John P. Callahan, “Industries Hail Curb on Agencies,” New York Times, 21 July 1946, F1.
165. “Control Boards Controlled,” Wall Street Journal, 9 September 1946, 4.
166. “Supplemental Report of the Special Committee on Administrative Law,” Annual Report of the American Bar Association 70 (1945): 272-275.
167. Feller, “Administrative Law Investigation Comes of Age,” 589.