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55 Harv. L. Rev. 364 (1941-1942)
Approach to Problems of Evidence in the Administrative Process, An

handle is hein.journals/hlr55 and id is 420 raw text is: HARVARD LAW REVIEW AN APPROACH TO PROBLEMS OF EVIDENCE IN THE ADMINISTRATIVE PROCESS N EITHER consummate wisdom nor the effective law concern- ing rules of evidence in the administrative process is found in judicial opinions of reviewing courts. Those opinions seem to be directed in the main to making a headlong choice between the two alternatives of accepting or rejecting the system known as the rules of evidence. 1 Reversals are usually couched in terms of the traditional rules; affirmances are typically based upon sweeping statements that the rules of evidence do not apply. The negative function of reviewing courts inhibits them from de- vising new rules or seeking practical methods for adapting old rules to new processes, and the confinement of judicial effort to occasional small problems stifles creative instincts. The administrative process is less like the judicial process than those who are familiar only with the functions of courts are inclined to appreciate. Some of the agencies' peculiarities which are quite unknown to the judicial process are crucial in the formulation of a satisfactory set of evidence principles. The relation between trial examiner and agency heads has little in common with the re- 1 The emptiness of the reasons usually advanced by courts for permitting agencies to depart from traditional rules is well portrayed by Stephens's summary of fourteen points, which faithfully reflect typical opinions: . . () the investi- gatory, legislative, supervisory, and regulatory aspects of the work of the tribunals are such that the application of rules of evidence would hamper, if not frustrate or render fruitless, such functions. (2) The commissions are administrative in nature. (3) A reparation order has only the effect of prima facie evidence. (4) The rules of evidence are objectionable as mechanical and mathematical. (5) It is necessary to dispense with the rules of evidence. (6) Evidence of the kind that usually affects fair-minded men in the conduct of their daily and more important affairs is suffi- cient for administrative tribunals. (7) The expertness of administrative officials makes unnecessary the application of the rules of evidence. (8) The fact of de novo hearings on appeal warrants relaxing the rules in the tribunal hearings. (9) Such is the intent of legislatures. (io) It saves time. (ii) It saves expense. (12) Hear- ings are 'fair ' notwithstanding non-application of the rules; it is not bad faith or improper conduct to violate them. (13) It is not denial of due process not to conduct the hearings under the rules of evidence. (14) The summary nature of the proceedings warrants dispensing with the rules of evidence. STEPENS, Amux- ISTRATMW TEBUNALs AND TH RULES oF EVIDENCE (1933) 86-87. EVol. 55

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