xt7msb3wtd0h_27 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/mets.xml https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2.dao.xml unknown 166 Cubic Feet 381 document boxes, seven textile items, three map folders, one artwork archival material 72m2 English University of Kentucky The physical rights to the materials in this collection are held by the University of Kentucky Special Collections Research Center.  Contact the Special Collections Research Center for information regarding rights and use of this collection. Frederick Moore Vinson papers Economic stabilization. Elections -- United States -- Congresses. Judges -- Correspondence. Judges -- United States. Judicial opinions Judicial process -- United States Legislators -- Correspondence. New Deal, 1933-1939. World War, 1914-1918 -- Veterans. World War, 1939-1945. Judges - general correspondence, E-L text Judges - general correspondence, E-L 2019 https://exploreuk.uky.edu/dips/xt7msb3wtd0h/data/72m2/Box_165/Folder_2/Multipage3328.pdf 1947-1952 1952 1947-1952 section false xt7msb3wtd0h_27 xt7msb3wtd0h watts... flail}; Emma]


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MUtual 6354

Call ZEnith 6354 from the following towns: Glendale, Pasadena.
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'R'epriniNo. I4! l—From issues of July 7, sad 7, I949


Brandies Gven Credit for Modern
Concept of “Supremacy of Law"

Before the Ninth Judicial Circuit Conference,
Los Angeles, June 28, 1949

When Dicey defined the

essence or supremacy of law

in 1885, his definition p ‘actically excluded the idea of ad—

minist "ative adjudication.

In 1936 Mr. Justice Brandeis

stated a more modern

concept. “The Supremacy of Law,” he states, “demands that

there shall be opportunity

to have some court decide

whether an erroneous rule of law was applied; and whether
the proceeding in which the facts Were adjudicated was con-

ducted regularly.”

e Dicey spoke of breaches of law
being ”established in the ordinary
legal manner before the ordinary
courts of the lanc.” Mr. Justice
Brandeis insists only that :1 court
rht‘ifh- whether or not It l'lll\‘ l.” l:f\\
was erroneously applied. .l’Je inSists
that as to the proceedings in which
'the facts were adjudicated that they
be regularly conducted.

Old Distinction

The old distinction between ques—
tions of law and questions of fact
form the basis of the new concept.
“Experts” acting as administrators
are thus the Ones who try the facts
and apply the law but it is only
the latter category that their judg-
ments may be reviewed. Courts as—
sisted in this distinction. The right
to review findings of fact was the
former rule and it was against this
rule that Mr. Justice Brandeis ex—
pressed the views just stated in a

1t seems odd, very odd, as a
three judge court has stated, that
a Constitution which expressly
makes findings of fact by a jury of
inexperienced layman, conclusive if
supported by substantial evidence,
prohibits Congress from making
findings of fact, by a highly trained
and especially qualified adminis-
trative agency likewise conclusive
provided they are supported by sub-
stantial evidence.

Views Prevail

The views of Mr. Justice Bran—
deis have prevailed. Agency rulings
on facts if supported by substan-
tial evidence are controlling under
the Administrative Procedure Act.

The words “substantial evi—
dence,” give scope to administra-
tive interpretation. Senator Mc—
Carran in an article in the Ameri-
can Bar Association Journal quotes
his Senate Judiciary Committee Re-
port and says that evidence must
meet the tests of reliability and
probity prevailing in Courts of Law
or equity in non-administrative
cases. I wish the term had been
’so dcfined in the statute. As it now
reads the administrator who is
usually an expert in something else
and not in the judicial process gives
a lay interpretation to the terms
and reliable means only that he
considers it worthy of reliance, pro-
bative means only persuasive to
him and substantial means having
substance in his opinion. The stand-
ard set by a few centuries of ex-
perience and observation in courts
of law are not imposed upon the
lay-administrator when he doubles
in the role. of a judge.

Administrative Law

Administrative law has been de-
fiiied by Goodnow, the pioneer
American scholar in the field as
“That part of the law which fixes
the organization and determines the
competence of the authorities which
execute the law and indicates to
the individual remedies for the vio-
lation of his rights.” To which I
might add that in practice it also
indicates to the. individual the ex-
tent to which his rights can be suc—
cessfully invaded and how com-
pletely he has been divested of a

1n the basic sense, Administrative
Law is a part of the Common Law.

Curbs to Power

Habeas Corpus, quo warranto,
ccrtiorari, mandamus and prohibi-
tion were all protective writs to
curb arbitrary officials in their exe—
cution of .'\dministrativc Law.

The injunction, suits for damages
against officials and recently the
Declaratory Judgment all serve to
keep officials from exceeding their
powers or punishing them by dani-
ages if they do so. I don"t see why
these remedies have not been givcii
greater scope in America. Perhaps
we have lacked a normal quota of
John Haiiiptons during these latter

The growth of Administrative
agencies in America is not new but
it has been rapid during the last
fifty years. The Final Report of the
Attorney General’s Committee on
Administrative Procedure gives the
following statistics as to the ori—
gin of these agencies:








22 outside regular departments.

30 within regular departments.

VVOrld War II had its host of

Total of Peacctime and \Var
Agencies: 254.

The increase in civilian employees
from 1,703,099 in 1942 to 3,649,769
in 1945 shows how vast has been
the increase of both jurisdiction and
function in the Administrative

Enabling Acts

Each agency in its enabling act
is given a rule-making power. They
operate in separate fields. They de—
velop their own procedures in con-
formity to the desire of their sepa—
rate experts. Now there is a myth
that should be exposed. The myth
of the expert. An expert is a per—
son who has restricted his atten—
tion and interest to a particular
segment of human knowledge. By
devoting abnormal attention to a
part of human knowledge he has
perforce neglected human knowl-
edge and experience as a whole.
Yet with expertness in a restricted
field only he is charged with the
duty of making rules for the gen—
eral conduct of mankind.

\'\"’c are licavy~ladeii with experts.
Sometimes “expert" is only an as
sumcd name. For instance, the
“expert” who wrote the O.P.A. Re—
gulations for citrus fruits and
juices was a very young Negro
lawyer who had never had any
experience in the growing, market-
ing or processing of citrus fruits
and whose only factual information
was gained from his steiiographer
who formerly lived in Florida.

Problem International

The problem of the expert is not
restricted to America. England has
had its troubles too.

ln 1929 Lord Chief Justice Hew-
art made a spirited attack on bu—
reaucracy. He stated the Creed of
the Rureaucrats as follows:

”1. The business of the Execu—
tive is to govern.

“2. The only persons fit to gov—
ern are experts.

“.i. The experts in the art of
government are the permanent
officials. who, exhibiting an ancient
and too much neglected virtue,
‘fhiiik tlicmsedves worthy of great
things, being worthy.’

“—l. But the expert must deal

with things as they are. The ‘four-
square man' makes the best of the
circumstances in which he finds
“5. Two main obstacles hamper
the beneficial work of the expert.
One is the sovereignty of Parlia-l
iiieut. and the other is the rule ofi

"6. A kind of fetisli-\v<:irship.i
prevalent among an ignorant pub—
lic. prevents the destruction of

ithese obstacles. The expert, there-

fore, must make use of the first in
order to frustrate the second,

/._ To this end let him. under;
Parliamentary forms. clothe himq


. self with despotic power. and then.

because the forms are Parliamen—j
tary. deiy the Law Courts.
"5‘. this course will prove toler—‘


ably simple if he can (a) get legis-
lation passed in skeleton form, (101
fill up the gaps with his own rules,
orders and regulations, (c) ulakc it '
difficult or impossible for l'arlia-
ment to check the said i'ulcS, or-
dt-rs and regulations, (d) secure
for them the force of statute. (c)
make his own decision final, ff)
arrange that the fact of his deci-
sion shall be conclusive proof of
its legality. (g) take power to nio—
dify the provisions of statutes, and
(h) prevent and avoid any sort of
appeal to a Court of Law.

“9. ll the expert can get rid of
the Lord Chancellor, reduce the
judges to a branch of the Civil
Service, compel them to give opin-
ions beforehand on hypothetical
cases, and appoint them himself
through a business man to be
called ‘Minister of Justice,’ the
coping—stone will be laid and the
music will be the fuller.”

Professor’s Views

Professor C. K. Allen of Oxford

“\Vc remain unconvinced, then,
of the necessity for specialist tri-
bunals and a specialist adiiiinistra-
tive law. Unless we are prepared to
admit that the whole constitutional
centre of gravity has moved from
the legislative to the executive;
unless we are willing to be gov—
erned not by ourselves through our
representatives but by officials who
are responsible to no electorate;
unless, in short, we are disposed
to revise the whole theory and
practice of the constitution which
has so long been our boast; unless
we are prepared to go thus far,
then what is most urgently needed,
and what is in no sense beyond
practical possibility, is to make ad—
ministrative powers as responsible
de jure as it is efficient de facto.
And this we believe will be done
only by means of a wholesome
body of administrative law devel—
oped iii harmony with the tradi-
tional principles of the general
legal system."

Interest Lacking

In America, interest in Adminis-
trative law has been almost wholly
lacking. As late as 1934 only about
half of the great law schools in
America gave any course in the
subject and those who did, made
them elective or post-graduate
courses. The American Bar Asso—
ciation agitated for Administrative
Reform and attracted some atten-
tion but only 63% of our law
schools gave courses as late as

But citizens have been feeling
the impact of the Administrative
Process and their reactions are iii—
teresting. They have been com-
plaining for generations about the
law’s delay. \7Vell, they can get
injustice quickly nowadays before
an Administrative Agency. And
they are sometimes given little op—
portunity to “kick at the decision.”
I believe that the period of reacl
tion should set in.

Some Criticism

Most of the justified Criticism
which has been directed toward the
Administrative Process had dealt
with its exercise of Judicial Pow-
ers. The old legal maxim that a
person should not sit as a judge
in his own cause has been too
firmly accepted as a maxim of fair—
11655 to be discarded on the grounds
of expediency. It is on this point
I believe that history will show a
change in present Administrative
Methods. I don’t know why it is
that we seem required to repeat
our mistakes year after year. I
know in myown field of Politics
we seem bound at the beginning;
of each campaign to make all the.
old mistakes over again before we
can settle down to business. I
suppose it is the same with Con-

Probably the oldest Administra-
tive Agency which exercises Le-
gislative, Executive and Judicial
powers the Patent Office. It
stems out of the Constitution it—
self. It was officially created as a
Patent Office in 1836. From 1790
to 1793 the Secretary of State to-
gether with the Secretary of \Var
and the Attorney General granted
patents. From 1793 to 1836 the
Secretary of State acted alone.


Legislation Increased

There has been much legislation
in the last 113 years in relation to
Patents, particularly in the selec—
tion of appellate tribunals to review
the work of the Patent Office. For
the last hundred years Congress
has been experimenting with tri—
bunals and Changing laws in re—
spect to the review of Patent Of—
fice practice. Casper \V. Ooms.§
former Commissioner of Patents.
stated, “.-\ study of the variety of
legislative efforts to meet the spe—
cial need of a reviewingr agency
adequate to the specialized work of
the Patent_Officc reveals the entire


anatomy of administrative review.
Although llllS wealth of matcriali
was available and although the;

.Patent Office furnishes the most‘;

prominent example of a fair and
effective r\tllllllllSil‘Zlil\'C Agency 1
the Committee on Administrative
Procedure appointed by the ;\t—

,torney General completely igiiorcd‘

it. lf is only mentioned in a foot—
note as follows: ‘-"the highly special—
ized character of the Patent Office.
and the insufficiency of the Com—
mittee's Staff led first to the post-
ponement and later to the abandon-

‘ ment of plans to study this agency."

-\l_\' lips have not been touched

jwith prophecy but 1 will venture

a feeble guess that the procedure
of the Patent Office will gradually
be imposed upon our other .\dinin—
istrativc Agencies as the remedy
for their (lefet‘ts.

1n the Patent Office, over a cen-
tury of trial and error has shown
that the Judicial Process is an in-
separable adjunct to thc administra—
tive l’rocess. Over a century of trial
and error have shown that the citi—
zen is entitled to the Judicial Pro-
cess to protect him from the error
or Oppression of an Administrative
Agency. Any citizen who is denied
a patent can have a trial de novo in
a District Court of the United
States on the issue of his right to a
patent or trademark. He can also
appeal within the Patent Office to
the Board of Appeals. He may
later appeal from the Board of Ap-
peals to an Administrative Court
known as the Court of Customs and
Patent Appeals.

Remedy of Appeal

On “interference cases” the citi-
zen is given the alternative remedy
of Appeal to the court of Customs
and Patent Appeals or a civil ac-
tion in the District Court of the
United States. ‘

After a patent is granted any citi-
zen who is aggrieved by an attempt
to enforce the rights of the patentee
may seek the protection of the Dis-
trict Court and have the validity of
the Patent adjudicated.

T have been informed that every
threat which has arisen in Congress,
to take away the right to a trial de
novo in the District Court of the
United States has been met with
violent opposition by a group of ex-
perts known as Patent Lawyers
who have found that the threat of
having a Court pass upon his con—
duct has softened the arrogance of
many an aggressive Administrator.

If there is one thing an Adminis-
trator hates and fears it is a court
of law. Our real difficulty is one of
men and not of law. Mclver in his
recent book, “The Web of Govern-
ment,” indicts bureaucracy as fol-

Value Exaggerated

“In general a bureaucracy sets an
exaggerated value on the mainten—
ance of the institutional scheme of
which it is the guardian, while the
individual member of the bureau-
cracy magnifies his own function
within it and is jealous of any en-
croachments by other functionaries.
Each member becomes entrenched
in his particular routine. There is a
meticulous grading of functions
with their specified prerogatives.
The system acquires a sanctity un—
related to the service it renders.
There is a tendency to make things
more complicated, more roundabout
for those who require its services.
The public, instead of being re—
garded as the client of the office,
for whose benefit it exists, must
accommodate itself to the conven-
ience of the office holder. Adminis-
eration is canalized into a set of
hard and fast methods without con—
sideration of more efficient pro—
cedures. The bureaucrat compla—
cently rejects experiment and inno-
vation. Seniority gives priority,
apart from merit or achievement.
Nepotism flourishes. Ability is less
esteemed than ‘correctness.’ The
bureaucrat shuns responsibility. His
decisions are never his own, but
those of the department. It is im~
possible in smoke him out. isle takes
refuge behind the ‘protocol’ of of-

Crux is Cited
. Roscoe Pound states the follow—
ing as the crux of the matter to—

. . . . The administrative proc-
ess has not . . . any well developed
technique of determination. It tends
to override what judicial experience
has taught us are fundamental prin-
ciples of securing full and fair hear-
ing to all interested parties and ob—
jective decisions. It has no well-de—
fined ideals. lZach administrative
agency is likely to think of its ini—
iiicdiatc practical purpose as para—
mount and so as something to
which all individual interests imust
give way. The judicial process has
long since achieved a definite au-
thoritative technique of determina—
tion, applied in the light of definite
authoritative ideals.

“Again, the administrative process
primarily concerned with the
guiding or directing function.
Hence, too often it shapes its excr~
cise of an incidental determining
function to the exigencies and in the
mold of the directing function. The
judicial process, on the other hand.
is primarily concerned with the
function of (lctci‘iiiiiiatimi. Hence, it
sometimes shapes the exercise of an
incidental administrative function
in the exigencies: of the dctcrminin;r
function. u
.- . Immediate Ends

Administration seeks to achieve
the ends of social control bv guid—
ance and prcvcnfion. it is gr’ivcrnfll
i'nwre directly by the immediate
ends, whereas in judicial justice a
balance 0f ends is sought luv insis-
lvll(‘<‘ upon means. lit-iii: :dvcrncd
fills in unique situations and

" to individualizc determina—




 tions, the administrative process is"

personal and hence is often arbi.
trary and subject to the abuses

incident to personal as cuntrzhtcd‘

with impersonal action. \\'clI ex
cised it is very efficient. much more
efficient than the- rival System can
cial process, acting according to
law in the first sense, tiipgrgltgg
characteristically by redress or by
punishment. General rules of action
are formulated in advance and ap—
plied to controversies after they
have arisen. In general it does not
supervise action but leaves individu»
als free to act, at then‘ peril of
responding for resulting injury, or
of restoring what they hold at the
expense of others. or of complying
with their undertakings if they do
not act in accordance with the
rules. It is characteristically im-
personal and safeguards against
ignorance, caprice, or corruption of
magistrates. But because of these
safeguards there is a certain lessen-
ing of efficiency and the process is
not quick enough nor is it auto—
matic enough to meet all the re-
quirements of a complex social
Both Are Needed

We need both processes to assist
in governing our Nation. We need
the new Bureau because existing
institutions are inadequate. Yet we
don't need to pay for it in total
loss of Liberty.

One hears a great deal about our
great IIuri-aurncy on
t'ttfiit'tlt't It; ll“ Li'v :itiitgu 1'5.
\Ve bear that we should eliminate
these agencies and get back to 21


more simple form of government;

. \IVe hear of Thomas Jefferson’s
aphorism to the effect that that
Government is best which governs
least. But I have not found many
specific recommendations for the
elimination of particular agencies.
When I have asked advocates of
governmental retrenchment which
agency they would eliminate, I
have been met with vague general—
ities and little or no specific con—
demnation. I think everyone knows
we are not going back and that we
can’t go back to the simple type of
government provided by the found—
ing fathers for an agrarian nation.

Can’t Go Backward

We can’t go back because we
can’t take history back with us, and
unravel the political, economic and
sociological conditions which
brought about the change.

The folly of this proposition lies
in the assumption that we can bring
about a fundamental result by mak—
ing changes in certain legal agen-
cies while leaving all remaining
human institutions unchanged. We
can’t change the result of our his-
torical development without chang-
ing the conditions which caused
that result.

Inventions in communications
such as the telegraph, telephone
and radio; in transportation such
as the railroad, the steamship, the
automobile and the airplane; in
agricultural methods such as the
mowing machine, the cotton gin,
the tractor and the truck; the de-
velopment of electrical power, the
development of mines and mining
machinery; the rise of industrial
plants and the development of the
production line; the growth of ur-
ban communities and the settlement
of the public domain; all these and
many more are contributing factors
in the gradual changes in govern—
ment which distinguish our present
plant from the simpler form of
government established in 1789. If
one would go back he must divest
himself of these developments be—
cause the growth of the agencies
many now wish to destroy are the
attempts of our lawmakers to regu—
late the change in life which these
inventions had Wrought.

Growth of Commissions

~ It was the growth of transporta—
tion and the development of trade
between the States which brought
1nt0 being the Interstate Commerce
Commission and the Federal Trade

The Telegraph, the Telephone
and the Radio are responsible for
the Federal Con‘imunications Com—

The Airplane is responsible for
the Civil Aeronautics Board.

The development of Electrical

Power is responsible for the Fed-
eral Power Commission and the
Rural Electrification Administra-
tion. Interstate services in elec-
tric1ty and gas were responsible
for the Federal Utilities Commis-
. Our development of industrial—
ism,_ our urban development, our
inability to provide complete mar-
kets for labor made necessary thos
agencies of government which were
desrgncd to ameliorate hardships
caused by unemployment and desti-
tutiou and thus agencies dealing
with Old Age Pensions, Social Sei-
curity and Employment Insurance
were born.

Thc‘inability of Banks to take
care of themselves and protect their
deposttors was responsible for the
Federal Reserve Board and the
Federal Deposit Insurance Corpo-

Abuses Cited

. The abuses of private enterprise
in the sale of securities brought
about the Security Exchange Com-


(In the other hand, the judir‘




The inability or unwillingness of'

private hurling agencies to pt‘ovidc‘

:idcttuati cruht facilities for the
\atinn Iymught the Iicconstructhm
Iiinanre Corporation into being.

The Invention wf ' \utomobilc

responsible for our National
Highway system and helped In
create our Federal \\'url;s \ecncy.

And the list could be multiplied
and extended.

1 don't think anyone Would want
to go back if he could. (lnr pruln
lent however is to see to it that
with the creation and administra-
tion of agencies as little of human
liberty as possible is sacrificed.

The fact that a l-htreau is neces-
sary does not justify an abuse of
power or an unnecessary infringe:
ment of the rights of the citizen.

The courts lack the facilities for
the type. of hearing necessary in
many .r‘\dministrative Proceedings.
In court one is limited to a mere
plaintilf—defendaut presentation. yet
often with the little help thus given,
a court is called upon to make a
pronouncement on a legal point
setting a National precedent. The
General Public is not represented,
but the General Public is involved
and is affected. Administrative
Agencies which have the power of
investigation are often better
equipped than Courts to secure
an adequate presentation. In the
scientific and factual fields the
expert has his necessary place. In
court the expert is often worthless.
I ha\e Iteyer heard an expert in a
court proceedings change
ion no matter how ~‘ L


. . l
‘Iengthy the cross-examination. My

experience in the field of expert
opinion in a rather active practice
in many fields is that the plaintiff
hires an expert to substantiate his
claim and the expert performs for
his hire. The defendant hires an
expert to give the opposite answers
and he does 50. Sometimes the
Court in an abundance of caution
hires its own expert who disagrees
with both of the others. And then
when the Court gives a judgment
at variance with all three. 1 ponder
on the devious ways in which hu-
man judgment are formed.
New Technique Needed

Mr. Justice Prettyman of the
Court of Appeals for the District
of Columbia has announced the
thesis that we need a New Trial
Technique in courts of law and in
Administrative Tribunals. He puts
the blame largely upon the Bar. I
suppose he is right. The Bar does
need a bit of reforming. My gen-
eration is in general beyond help,
as I view it. The older lawyers
who learned their law over thirty
years ago are too prone to rely
on the old maxims and disregard
the rise of administrative law. Most
of us are too lazy to find out about
it. It is much easier to complain.
We rely on the doctrine of “sub-
stantial justice,” whatever that may
be, and ”inalienable rights” which
have already been eroded away and
”constitutional guarantees” which
are being re-interpreted. Now these
are all fine phrases and all sound
well but they don’t help a modern
client who has a problem involving
a change in frequency for his radio
station or a new service stop for
his airline or a certificate of con-
venience and necessity for some
interstate facility. A vast factual
presentation and not an histronic
effort is what is required. And if
that doesn’t do the trick then those
who are wise in human values and
have little faith in the new Ad—
ministrative Procedure Act which
gives them a right to review in a
Court of Law adopt the device of
”seeing the right person” or per—
sons in \Vashington and thereafter
proceed through political channels.

Little Change Seen

The Administrative Procedure
Act has not changed matters much
so far as I can see. After its pas—
sage, Arthur T. Vanderbilt, now
Chief Justice of the Supreme Court
of New Jersey held an Institute
wherein various attorneys for Ad-
ministrative Agencies read papers
dealing with the impact of the Act,
on their agency.
,Mr. Caldwell,
Counsel for the
Commission stated he didn’t be-
lieve the Act had materially
changed practices at the Federal
Communications Commission.

Mr. W'anner, Assistant Counsel
for the Civil Aeronautics Board,
said “because of the safeguards al—
ready in the Aeronautics Act and
the practices already adopted by
the Board no drastic changes were
required in the Board's procedures
and methods by reason of the Pro-
cedure Act.”

Mr. Ralph H. Dwan. Assistant
Chief Counsel for the Bureau of
Internal Revenue. explained the
present practice as to Review and
added, “Such a review seems ade-
quate and it is unlikely that it is
changed by the Administrative
Procedure Act.”

Mr, Frank Delany, Solicitor of
the Post Office Department. com»
plained of the burden and expense
imposed upon the Post Office De—
partment. He conceded that it
might prove worthwhile in the long

Mr. Roger S. Foster. Solicitor
of the Securities and Exchange

former General

Federal Radio

his opin—
yl ‘

.trative setup as




lit.tl ll‘t‘




didn't chance

Caspar Dams. t‘muiuissiuncr [If
l‘ntcnts. stated that the statute
made slight impact on the I'.itent

Ugo Carnsi, L', S. (.‘tlllllllIs-illfllt‘l’
of Immigration and Nuturnliraiiou,
said the Act will effect no :ippri»
ciable change in the principles ism
erning judicial review of innuigm:
tion proceedings.

C. A. Miller, Vice President and
General Counsel for American
Short I.ine R. l\', Associatirm
stated: “I see nothing in lllt‘ .\d=
ministrativc l.’rocedure Act which
limits or expands judicial reiiiun
of the orders of the Interstate
Commerce Commission.”

Fair Trial

The Dureaucrats don't think the
Administrative Procedure Act ap-
plies to them because they lu'licvt’
that they have been giving all the
safeguards necessary for a fair trial
all along. They are experts. but not
experts in the judicial process. In
a Court of law a fair trial has :1
definite meaning. To us the words
imply a proceedinu' held under the
sanctions and safeguards attendiing.
a judicial proceeding, In an Ad—
ministrative Proceeding the term
“fair trial” is only the name the
llureaucmt gives to what he does
to you there.

It all a matter of \vrvz'lls. \Yx'
must remember how Hitter fought
a “defensive war" in Poland, how
the war between Japan and China
was an ”incident,” and that the
purpose of the Japanese Invasion
was to ”protect” China.

The Legislative approach to the
problems of Administrative Law is
the creation of an Administrative
Court of the United States and bills
therefor are now pending in both
the Senate and the House of Repre-
sentatives. They provide for an
Administrative Court of Review
where none now exists, leaving the
jurisdiction of the Court of Claims,
the Customs Court, the Courtof
Customs and Patent Appeals and
the Tax Court unimpaired. It is
to have no jurisdiction in a case
where a money judgment is sought,
an issue of tax liability is presented
or the grant or denial of a patent
is questioned.

Review Needed

It is to have exclusive jurisdic-
tion to review agency action where
Jurisdiction is now in the District
Court and also for the civil enforce—
ment of the rules, orders or investi—
gative demands of any agency.

The Court shall have the author—
ity to grant Declaratory Judgments
and to compel agency action wrong-
fully withheld.

Personally, I don’t see how inat—
ters will be helped by creating
another Special Administrative
Court. History gives a general pat—
tern in this regard. We tend to
set up a multiplicity of specialized
tribunals and then gradually con—
solidate them into a simple unified
system. The pattern is the same
for any new development in law.
There was agitation for such a
court fifteen or twenty years ago.

If the Administrative Court
proves to be a real court and not
a mere arm of executive power it
will be as objectionable to the pro—
ponents of an all-powerful adminis-
honest to God
Courts of Justice have been. If it
doesn’t become a real Court it can
serve no useful purpose.

Lawyers Excluded

The Administrator hates a real
Court and he hates a real lawyer.
I remember the first act of Rex
Tugwell when he held hearings in
Puerto Rico on the SOO-Acrc Land
Law was to exclude all lawyers
from the proceedings. I have often
been told at Administrative hear.
ings that legal formalism was dis-
pensed with and that the purpose
was to get to the meat of the mat
ter without the hindrance of legal
technicalities. And then the farce
Would begin. l-l'earsay twice re«
moved opinions of unqualified per:
sons; conjecture; surmise; canned
testimony in the form of prepared
statements; denial of the right of
crossncxaniinations; lack of plead-
ing. so as to prevent prepat‘attt‘tn,
and a zealous opponent with a rec—
ord of I:)L‘])at’,tlllctlifll Service to
maintain sitting as judge in his own

Then there was the appeal with-
in the Agency. Only a few weeks
ago I visited an Under-Secretary
in one of our Departments of ("lov—
erninent. I found him signing let—
ters affirming decisions of subordi-
nates from one. of thr- Depart—
mental Agencies. I asked him how
he informed himself on the cases,
He stated quite frankly that he
didn’t inform himself and merely
relied upon the decision of his sub-
ordinates. Int the poor devil out
in the sticks was payingr for an
Appeal. He got form and not sub-


Examination Denied

I have heard Administrators tell;

lawyers to “shut np'I when
we c askincr to
agency \\'itne