About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

26 A.B.A. J. 552 (1940)
Let Me Find the Facts ...

handle is hein.journals/abaj26 and id is 578 raw text is: LET ME FIND THE FACTS Administrative Law as a Part of our Governmental Process - Misgivings and Opposition Aroused by it-Process is here to Stay-What of the Future? By LAIRD BELL* Of the Chicago Bar HE administrative process bulks large in our governmental machinery today. Many things about the process disturb lawyers brought up in the older tradition. Combination in one body of ex- ecutive, legislative and judicial powers offends them; delegation to small boards of wide powers to legislate, under standards of increasing vagueness, curtailment of court review of administrative decisions-these and many other factors of the new procedure have aroused misgivings and opposition. Defenders of the process plead the practical necessity for expedited govern- mental machinery, and claim for it great advantages in expertness. Objectors are swept aside as apostles of old fogeyism. Yet doubt persists among many men, including men who are on the whole sympathetic with the objectives of the new legislation. A major underlying doubt-and a growing one- is in regard to the fusion in certain commissions of the functions of prosecutor and judge. What follows is written on the assumption that the administrative process is here to stay, that its development has been necessary if government is to cope with an increasingly complex society, and that it is on the whole a good process. It is, however, submitted that if administra- tive boards are to function well they must function fairly. It is submitted that they must also be believed to be functioning fairly. On both these grounds there should be greater separation of the roles of prosecutor and judge than at present. In the scores of commissions now operating under federal and state laws, issues of fact in complaints ini- tiated by the commissions are determined by the com- missions themselves. Often the facts are heard in the first instance and findings made by a trial examiner appointed by the commission from its own staff. While the trial examiner's report on the facts is not final, it is usually the basis for the findings of the com- mission itself. In many cases the findings of the trial examiner are purely formal and involve issues largely uncontested. But in an increasing area the findings are far from formal and the issues are bitterly con- tested. With each new commission this area is en- larged, and when it comes to fields surcharged with emotional bias, such as that of the National Labor Re- lations Board, the impartiality of the fact-finding agency becomes a matter of real moment. It is a fundamental concept of justice that no man shall sit in judgment upon his own case. At any rate many of us had supposed so. It now appears from the writings of some of the more ardent advocates of the administrative process that this was just a plati- tude tossed off long ago by Lord Coke-a time-worn dictum, which presumably no longer has validity. *Chairman, Committee on Administrative Law, Chicago Bar Association. Some observations on the subject may still be permis- sible, however, on the assumption that the dictum still has merit. It is probably too late to. insist on complete separa- tion of prosecution and judgment in commissions. The commission form of agency is too thoroughly established to make it practical to question some fusion of the functions at this late date. The blessing of the Su- preme Court has been conferred with increasing fervor upon the constitutionality of the administrative process, despite the fusion of functions, and it is hardly to be hoped that there can be any turning back now. Other considerations than constitutionality may be weighed, however. The device may be within the powers of the legislature and still lack perfection. It may offend no constitutional prohibition when a com- mission with power to initiate complaints hears its own counsel prosecute its own complaint and solemnly de- cides that it was right when it complained. But it may nevertheless offend the sense of justice of some worthy people. Gilbert & Sullivan immortalized a device like that when the Lord Chancellor in Iolanthe passed on his own application to marry his ward. Those old-fashioned writers thought the idea funny. Today it is apparently a device of efficiency. But it may still be thought that the arrangement is not a sound one, and specifically that it is not wise for the commission to find its own facts. Chief Justice Hughes crisply summarized the situa- tion in saying, An unscrupulous administrator might be tempted to say, 'Let me find the facts for the peo- ple of my country and I care little who lays down the general principles.' Even Dean Landis, who may perhaps be regarded as the leading advocate of the administrative process, said, in his Storrs Lectures: No one can fail to recognize that there are dangers implicit in this combination of functions in an admin- istrative agency. In Great Britain, where no constitutional issues are involved, but the principles of natural justice are nev- ertheless respected, this issue has been actively debated in recent years. The Committee on Ministers' Pow- ers, which formulated the so-called Sankey report in 1936, criticizes the fusion of functions of prosecutor and judge, and makes a further point as to the nature of the interest which disqualifies the judge from pass- ing upon his own case. Indeed we think it is clear that bias from strong and sincere conviction as to public policy may operate as a more serious disqualification than pecuniary in- terest. No honest man acting in a judicial capacity allows himself to be influenced by pecuniary interest: if anything, the danger is likely to be that through fear of yielding to motives of self-interest he may uncon- sciously do an injustice to the party with which his

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most