VALUES OF JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY PROCEEDINGS

VALUES OF JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY PROCEEDINGSAuthor(s): Anthony LewisSource: Administrative Law Bulletin, Vol. 11 (WINTER, 1958), pp. 198-200Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/40712651 .

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198 SECTION OF ADMINISTRATIVE LAW

so there has been a kind of interreaction which has affected regu- latory agencies.

The last thing I would really like to say is that I think that the greatest chance one has in the courts of sustaining a Commission decision is if it is based upon adequate findings, a well-reasoned opinion, a good report. The best chance private practitioners have of upsetting the Commission's decision is if the negative is true.

I don't suggest that private practitioners should hobble the Commission, but I do suggest that the Commission staff should make every effort to see that the Commission's decisions are well supported by findings and conclusions of law so that they can be supported in the courts.

VALUES OF JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY PROCEEDINGS

By Anthony Lewis, Washington Bureau, The Neiv York Times

My first point has already been said by Oscar Davis much better than I could: that is simply to discern a trend, especially in the courts of appeal, toward expanding judicial review.

On top of what Mr. Davis had to say, I will add a couple of Supreme Court cases last year that looked the other way from the Panama Canal case, which he mentioned. The first of those was a pair of Army discharge cases so-called; people who had been given less than honorable discharges from the Army because of alleged subversive activities before their induction.1

The lower courts held when they sued for a better discharge that the long-time practice and the statute provided no review in the courts of such discharges. The Supreme Court in procuring opinion said:

"General judicial relief is available to one who has been injured by an act of a government official which is in excess of his express or implied powers. The District Court had not only jurisdiction to determine its jurisdiction but also power to construe the statutes involved to determine whether the respondent did exceed his powers. If he did so, his actions would not constitute exercises of his administrative discretion and . . . judicial relief from this illegality would be available/' (355 U.S. at 581-2)

i Harmon v. Brucker and Abromoivitz v. Drucker, 355 U.S. 579 (1958).



AGENCY AND JUDICIAL REVIEW 199

That seems to me to be a very broad statement of the avail- ability of judicial review.

In November 1958, a case came down from the Court involving the question of whether the National Labor Relations Board had correctly excluded the hotel business from its jurisdiction.2 A good part of the Government brief, as I recall, was devoted to the proposition that there was no jurisdiction in the lower court. The Supreme Court in one sentence reversed the decision of the Court of Appeals and found the NLRB had acted improperly. The Supreme Court did not even think to mention the jurisdic- tional point.

Now the question is, why is there this trend that I believe we probably all will agree exists, of a broader judicial review?

Commissioner Connole has a theory that judicial review varies according to the economic situation in the country: that in bad times the courts tend to give the agencies free rein, while in good times the courts begin throttling down again.

I think if that theory were limited to the proposition that in times of emergency the courts may be more deferential to the agencies, that theory would have some weight. But that hardly seems all of it to me.

A second reason I think was stated 20 years ago by Dean Landis in his book on the administrative process.8 He suggested that strictness of judicial review may vary inversely with the reputation of the agencies. He suggested that from time to time some of the agencies would get a reputation for other than fair dealing, and that the courts would be generally aware of that as to particular agencies, and would review them more strictly accordingly. I think we have to some degree seen that work in recent years.

Finally I think there is a more basic reason for the expanding content of judicial review, at least a reason which seems per- suasive to me. It is simply a growing appreciation of the valuable role the courts have to play in the administrative process.

Now to me that is the role of the non-expert. I think courts are apt to be more dispassionate, less likely to be committed to a particular approach or theory. They are not confined to the problems and habits of a particular industry, something that seems to me particularly inevitable in any specialized agency; and they can approach problems against the broad background of law and public

2 Hotel Employees' Local No. 255 v. Leedom, 358 U.S.- (1958). 3 Landis, The Administrative Process (1938).



200 SECTION OF ADMINISTRATIVE LAW

need without the special knowledge that may breed a special view- point. Despite these reasons why I think judicial review as a generality is good and is expanding, we must recognize that often the heart of the administrative process is beyond revision or correction by the reviewing courts. The courts themselves make that plain. One notes, for example, that in the many comparative television cases reversed by the Court of Appeals, the Communi- cations Commission in reconsidering those cases has not thus far taken a channel away from the grantee with the station on the air. In situations like this, judicial review cannot get to the ultimate heart of the problem.

Hence, the problem for you and one which I would not dare to suggest a solution to, is to make the final agency decision par- take more of the objectivity of the broadness of the view that the court may have, while not abandoning its expertise.

I myself would go for more emphasis at the Commissioner level on non-experts. Harold Leventhal said recently that in industry people shift from one industry to another and bring advantages for that reason. He said that at the Commission level experience or technical competence in a particular industry is relatively unimportant.

Of course different agencies have different problems, and no generality can solve it. I leave you only with my strong feeling that we should be looking at the Commission level as we do at the courts for a broadness of view rather than for technical expertise alone.



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VALUES OF JUDICIAL REVIEW OF ADMINISTRATIVE AGENCY PROCEEDINGS