56 Harv. L. Rev. 899 (1942-1943)
Fact and Law in Judicial Review

handle is hein.journals/hlr56 and id is 943 raw text is: FACT AND LAW IN JUDICIAL REVIEW

N that most excellent report of the Attorney General's Commit-
tee on Administrative Procedure appears the following:
In the language of judicial review sharp differentiation is made be-
tween questions of law and questions of fact. The former, it is uniformly
said, are subject to full review, but the latter, in the absence of statutory
direction to the contrary, are not, except to the extent of ascertaining
whether the administrative finding is supported by substantial evidence.'
As an enunciation of accepted doctrine this is undoubtedly cor-
rect.2 However, immediately following this pronouncement comes
a paradox:
In numerous decisions courts have held that the specific issues involved
were questions of fact or questions of law. But criteria for ascertaining
confidently which is which prior to court decision have not yet devel-
oped. A scholar has concluded that: In truth the distinction between
C questions of law' and ' questions of fact' really gives little help in de-
termining how far the court will review; and for the very good reason
that there is no fixed distinction. They are not two mutually exclusive
kinds of questions based upon a difference of subject matter. The knife
of policy alone effects an artificial cleavage at the point where the court
chooses to draw the line between public interest and private right. 3
I REP. ATT'Y GEN. Comm. AD. PRoC. (1941) 88.
2 See ICC v. Union Pac. R. R., 222 U. S. 541, 547-48 (1912) (Mr. Justice La-
mar's well-known epitome of judicial review of the ICC's orders); Mr. Justice
Brandeis, concurring in St. Joseph Stock Yards Co. v. United States, 298 U. S. 38,
77 (1936) ; Virginian Ry. v. United States, 272 U. S. 658, 663 (1926) ; BENJAMIN
RP. AD. ADjuD. IN N. Y. (1942) 347; Isaacs, Judicial Review of Administrative
Findings (1921) 30 YALE L. J. 781; Rosenberry, Power of the Courts to Set Aside
Administrative Rules and Orders (1938) 24 A. B. A. J. 279; Note (1938) 26 CALIF.
L. REv. 683. In many review statutes the conclusiveness of administrative findings
of fact is expressly declared. See, e.g., Communications Act of 1934  402(e), 48
STAT. 2094 (1934), 47 U. S. C.  402(e) (1940) ; REP. ATT'y GEN. Comm. AD. PROC.
(i941) 89. An exception to the doctrine that administrative determinations of fact
supported by substantial evidence are conclusive has been declared by the Court
where so-called jurisdictional constitutional fact questions are involved. Crowell
v. Benson, 285 U. S. 22 (1932); Ohio Valley Co. v. Ben Avon Borough, 253 U. S.
287 (2920). This alleged exception has been frequently and exhaustively consid-
ered elsewhere. See articles and notes cited in GELLnoRN, CASES AND COMMENTS ON
ADmINIsTRATIvE LAW (2940) 898, 944.
3 The part quoted by the Attorney General's Committee is from DIcKINsoN,


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