The Place and Function of Judicial Review in the Administrative Process
The right to introduce new evidence on review in these situations is not clear. Cf.
American Trucking Ass'ns v. United States
The P lace and Function of Judicial Review in the Administrative Process
Robert Kramer 0
0 Thi s Article is brought to you for free and open access by FLASH: The F ordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The F ordham Law Archive of Scholarship and History. For more information , please contact
Recommended Citation Robert Kramer, Th e Place and Function of Judicial Review in the Administrative Process, 28 Fordham L. Rev. 1 (1959). Available at: http://ir.lawnet.fordham.edu/flr/vol28/iss1/1
Edited by the students of the Fordham
University School of Law
SUBSCRIPTION PRICE $5.00, SINGLE ISSUE $1.50. Make checks payable to Fordham Law
Review. If a subscriber wishes his subscription discontinued at its expiration, notice to
that effect should be sent; otherwise it is assumed a continuation is desired.
The views expressed in this periodical are to be attributed to the authors and not to the
FoRDAm LAW REVIEW, its Editors, or Fordham University. Contrary observations are
invited and will always be carefully considered for publication.
Printed by The Heffernan Press, Worcester, Massachusetts.
TABLE OF LEADING ARTICLES-TITLES
TABLE OF LEADING ARTICLES-AUTHORS
TABLE OF BOOK REVIEWS-AUTHORS
COUNTRYMAN: DOUGLAS OF THE SUPREME COURT. Leonard F. Manning ..........
DASH, SCHWARTZ AND KNOWLTON: THE EAVESDROPPERS. Eugene H. Nickerson ......
FRIEDMANN AND PUGH: LEGAL ASPECTS OF FOREIGN INVESTMENT. Robert Delson
GALSTON: BEHIND THE JUDICL CURTAIN. Martin Fogelman ....................
GORDON AND ROSENFIELD: IMMIGRATION LAW AND PROCEDURE. Jack Wasserman ....
MAYERS: SHALL WE AMEND THE FIFTH AMENDMENT? C. Dickerman Williams ....
MOSKOwiTz: HUMAN RIGHTS AND WORLD ORDER. Joseph D. Hassett, SJ............
PRETTYMAN: TRIAL BY AGENCY. Louis L. Jaffe ..................................
WORTLEY: EXPROPRIATION IN PUBLIC INTERNATIONAL LAW. Martin Domke ......
ZEISEL, KALVEN AND BUCHHOLZ: DELAY IN THE COURT. Alfred C. Clapp ..........
-Federal Preemption 275
Validity of "Lord's Day" Statute Under
Guarantee of Fourteenth Amendment
Double Jeopardy a Bar to Prosecution
for Greater Offense After Reversal
of Conviction for Lesser Offense 837
Double Jeopardy Arising Out of
Discharge of Jury for "Convenience" 534
Single Act Against Two Individuals
Constitutes One Crime 152
Manufacturers' Liability to Remote
Users of Obviously Dangerous
Municipal Liability for Failure to
vide Police Protection 316
See Public Officials
Right to Bring Suit While a Patent Is
Withheld Under a Secrecy Order 168
PRACTICE AND PROCEDURE
Pre-Trial Discovery of Insurance
age and Limits 215
-Rules and Statutes on Discovery 216
-Injured Party's Action Against
Wrongdoer's Insurer 218
-Purpose of Discovery 219
Incompatible Municipal Offices in New
-Common Law Incompatibility 466
-Statutory Prohibitions 469
-Administrative Pronouncements 476
-Appendix Relating to the
Incompatibility of Village, City, Town, County,
School District, and Fire District
Workers Laid Off Due to Labor Dispute
Ineligible to Receive Unemployment
See Administrative Law
Extraterritoriality of a Chattel Security
Interest: A Plea for the Bona Fide
-Lex Loci Contractus 422
-- Situs Theory 423
-Ostensible Ownership Through
-Extraterritorial Effect of Constructive
-Modern Protection of Bona Fide
Promise Not Within Statute Where
Promisor Is Independently Liable 384
TO VC)LIME XXVIII
N.C. Business Corp. Act
Sec. 55-52(c) (1)
Sec. 55-52(e) (3) (4)
N.D. Rev. Code Sec. 29-21121
Ohio Rev. Code Ann.
Tex. Code Crim. Proc. art. 726
TABLE OF CASES
Case names prefixed with an asterisk are the subjects of Case Notes
Brown v. Walker ................
Burris v. Lewis ..................
Cheney Bros. v. Joroco Dresses Inc.
Danann Realty Corp. v. Harris .... 808
Deluxe Metal Furniture Co .... 766
Demaree v. Superior Court ...... 221
Dennis v. United States .......... 265
DeWolf v. Ford ................ 560
Deyo v. Village of Piermont, Inc. 337
Di Pietruntonio v. Superior Court 226
District of Columbia v. Little .. 530,
Walkowicz v. Whitney's Inc........
Yates v. United States .. 263, 264, 265,
266, 279, 282,
Youngstown Sheet & Tube Co. v.
Bowers .................... 346, 348
PROFESSOR ARTHUR A. McGIVNEY
A. McGIVNEY 1890 - 1958
A distinguished career ends with the death of Professor
Arthur A. McGivney.
He was a great lawyer, teacher, gentleman and friend. His
tireless guidance and selfless devotion earned him the
admiration of the community, the legal profession and the
Fordham University School of Law.
The Editors of FORDHAm LAW REVIEW respectfully dedicate
this issue to the memory of Professor Arthur A. McGivney.
For thirty-three years the scholarly teaching and resolute
disposition of Professor Arthur A. McGivney were an
inspiration to Fordham Law School. His unseasonable loss was
mourned not only by his family and friends, but also by
the community-at-large to which he unselfishly devoted his
The recognition he attained in his chosen field was merited
by his authoritative presentation of the law, intellectual
prowess, unimpeachable integrity and by his ability to convey
exacting concepts. During his career, he ably and
conscientiously trained future judges, lawyers and civil officials in the
intricate legal principles of Trust, Estate and Tort law. His
warm-hearted manner and Gaelic wit earned him the loyal
affection of his students and colleagues.
He was a favorite son of New York and generously devoted
his time and energy to many public service organizations. He
was a member of the Committee on Legal Education, a member
of the Board of Governors of the Guild of Catholic Lawyers
and a director of the New York County Lawyers Association.
In appreciation of his able and devoted service, Fordham
University was proud to confer on him its honorary degree of
Doctor of Laws in 1956.
We yield to the inevitable with faith and a fervent prayer
that the Lord will grant the departed eternal rest and peace.
Thus, the availability and amount of judicial review may be largely
dependent upon what has transpired before the agency, including such
factors as the nature of the hearing, the adequacy of the record, the
fullness of the reasoning in the agency's opinion, the presence or absence of
counsel, and the extent of the separation of the agency's functions.
JUDICIAL REVIEW OF QUESTIONS OF FAcT
In a discussion of judicial review of questions of fact, three key points
should be constantly kept in mind. First, a court will often label a
question of law one of fact (the converse, however, is seldom true, for
questions of fact are not apt to be called questions of law). This is
particularly so of mixed questions of law and fact, where statutory terms are
applied to facts. Second, there are, as previously pointed out, two distinct
matters here. One is whether all questions of fact or only certain specified
questions should be judicially reviewed. It is not unusual, as we have
seen, to have judicial review available for certain types of cases involving,
for example, enemy aliens, government contracts, and pensions, on only
specified factual matters as fraud, gross mistake, malice, and
citizenship. This problem as to what factual issues may be judicially
reviewed is discussed in the previous sections on availability of review. It
should be noted, however, that even if judicial review is limited solely to
questions of law (constitutional issues, statutory interpretation,
jurisdictional issues, due process, and fair procedure) these in turn often
involve factual determinations (was the defendant actually denied
counsel, could he understand English, did the agency act with malice, etc.).
Third is the problem discussed in this section, the scope or amount of
review of evidence on disputed factual issues. If a given factual question is
judicially reviewable, then the problem is whether the judge may
substitute his judgment for that of the agency, or whether he is restricted to a
lesser role, such as the substantial evidence test.
A common error is the belief that one can devise a precise
mathematical rule which will give objective certainty, so that all judges will
apply identical tests and reach identical results in reviewing any agency
action. This not only is impossible, but it is also a deceptively dangerous
idea. This result might appear to be achieved by an extreme rule that
there is no review at all, or that there is a trial de novo on review, or that
the court will independently reach a decision on the basis of the record of
the agency hearing. Even here judges would differ as to the results in a
trial de novo or in making an independent judgment. A rule in the middle
ground between the two extremes of all or nothing must be phrased in
broad terms which leaves much to the discretion and good sense of the
individual judge. The rule can give the conscientious judge some leads as
to what to do, but it cannot give him a precise measuring tool which can
be automatically used to test the agency order. Attempts to do this are
unwise and fraught with peril. Rigid formulas only place a court in an
apparent strait jacket and blind it and counsel to the real nature of the
The residuum test requires the flat rejection of any agency finding of
fact based on hearsay alone. This is a good example of the dangers present
in this sort of rigidity. 167 First, it is deceptive since it is not as tight a test
as would appear, for seldom is any finding based only on hearsay. There
is almost always other non-hearsay evidence which can be deemed to
support the finding or not, depending on the attitude of the individual
judge. 168 Second, the critical issue is not hearsay, but such factors as: (1)
the availability of non-hearsay evidence on the matter and the alternatives
to using the hearsay; (2) the presence or absence of trustworthy
supporting or opposing evidence on the point at issue; 169 (3) whether the
hearsay evidence is mere fifth-hand rumor and gossip or reliable
testimony;' 70 (4) the extent to which cross-examination would be effective,
because of the probable deficiencies in the declarant's memory and
perception; (5) the issues at stake,' 7 ' since the use of hearsay to grant a
government pension is unlike its use to revoke a license, fire an employee
for security reasons, or deport an alien; and (6) whether the hearsay is
167. Carroll v. Knickerbocker Ice Co., 218 N.Y. 435, 113 N.E. 507 (1916). See 2
Davis, Treatise §§ 14.10-.12; Davis, The Residuum Rule in Administrative Law, 28 Rocky
Mt. L. Rev. 1 (1955). The status of the rule in the federal courts is not dear. Some
decisions seem to support it. Bridges v. Wixon, 326 U. S. 135 (1945); Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 230 (1938); Willapoint Oysters, Inc. v. Ewing, 174 F.2d 676,
691 (9th Cir.), cert. denied, 338 U.S. 860 (1949); NLRB v. Illinois Tool Works, 119 F.2d
356, 364 (7th Cir. 1941); Union Drawn Steel Co. v. NLRB, 109 F.2d 587, 592 (3d Cir.
1940); NLRB v. Bell Oil & Gas Co., 98 F.2d 406, 409-10 (5th Cir. 1938). But cf. NLRB
v. Cantrall, 201 F.2d 853, 855 (9th Cir.), cert. denied, 345 U.S. 996 (
Power Co. v. FPC, 185 F.2d 491, 497-98 (D.C. Cir. 1950), cert. denied, 340 U.S. 947
(1951); NLRB v. Southern Wood Preserving Co., 135 F.2d 606 (5th Cir. 1943). The
TaftHartley Act may prohibit admission or use of hearsay. 61 Stat. 146 (1947), 29 U.S.C.
§ 160(b) (1952). Cf. NLRB v. Haddock-Engineers, 215 F.2d 734 (9th Cir. 1954); NLRB
v. Amalgamated Meat Cutters, 202 F.2d 671 (9th Cir. 1953). But cf. NLRB v. Imparato
Stevedoring Corp., 250 F.2d 297 (3d Cir. 1957).
168. Cf. United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103
(1927) (hearsay plus silence and refusal to explain by subject of hearsay evidence) ; NLRB
v. Ohio Calcium Co., 133 F.2d 721 (6th Cir. 1943).
169. Cf. American Rubber Prods. Corp. v. NLRB, 214 F.2d 47 (7th Cir. 1954).
170. Cf. Martel Mills Corp. v. NLRB, 114 F.2d 624 (4th Cir. 1940); In re Rath
Packing Co., 14 N.L.R.B. 805, 817 (1939).
171. Cf. Public Util. Comm'n v. Pollak, 343 U.S. 451, 460 (1952); The New England
Divs. Case, 261 U.S. 184, 197-99 (1923) (use of typical evidence by ICC); Rhodes
Pharmacal Co. v. FTC, 208 F.2d 382 (7th Cir. 1953), modified, 348 U.S. 940 (1955); American
Airlines, Inc. v. CAB, 192 F.2d 417, 419-22 (D.C. Cir. 1951). But cf. Tri-State
Broadcasting Co. v. FCC, 96 F.2d 564 (D.C. Cir. 1938).
being used where factual disputes are few, and speed and low cost are
essential, as in social security matters. 7 2
The present tests for judicial review of questions of fact used by the
courts and drawn in part from the language of the Administrative
Procedure Act' 7 3 are probably as satisfactory as can be hoped for. Perhaps if
the past could be wiped out, a better phrased test could be devised. Courts
and lawyers, however, have struggled for years with the language of the
present tests and the Act. Any changes will mean a new period of great
uncertainty while the courts attempt to delineate the extent of the
changes. Moreover, changes are not needed. The present tests give both
agency and court sufficient discretion so that each can perform well the
function for which it is best suited, and still guarantee an adequate
independent check on administrative power by judicial review.
For most findings of fact, the current test is whether there is
substantial evidence upon the whole record to support the findings. If so, the
court may not set the findings aside.' 4 This means that the court is to
make certain there is record evidence providing a rational basis for the
finding. The judge determines whether the finding could be made from
this evidence by reference to the logic of experience, or whether the
evidence is sufficient to find the legally needed fact by reasoning from the
evidence. Fundamentally, this boils down to the fact that the judge is to
reverse if he conscientiously feels the finding is not supported by the
entire record. The fact that the trial examiner disagreed with the agency
finding, when that finding is based in part at least on credibility of
witnesses, is certainly a factor to be taken into account by the court here.
The trial examiner, however, is not to be considered as a master reporting
to a court, whose findings are reversible by the agency only if clearly
172. Cf. Marmon v. Railroad Retirement Bd., 218 F.2d 716 (3d Cir. 1955); Ellers v.
Railroad Retirement Bd., 132 F.2d 636 (2d Cir. 1943).
173. Section 10(e) provides that a reviewing court shall "hold unlawful and set aside
agency action, findings, and conclusions found to be . . . unsupported by substantial
evidence. . . . In making the foregoing determinations the court shall review the whole
record or such portions thereof as may be cited by any party . . . ." 60 Stat. 243 (1946),
5 U.S.C. § 1009(e) (1952). Section 7(c) provides that "no sanction shall be imposed or
rule or order be issued except upon consideration of the whole record or such portions
thereof as may be cited by any party and as supported by and in accordance with the
reliable, probative, and substantial evidence." 60 Stat. 241 (1946), 5 U.S.C. § 1006(c)
174. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951); NLRB v. Pittsburgh S.S.
Co., 340 U.S. 498 (1951); NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292,
300 (1939); Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). See 4 Davis,
Treatise ch. 29; Jaffe, Judicial Review: Question of Fact, 69 Harv. L. Rev. 1020 (1956);
Jaffe, Judicial Review: Substantial Evidence on the Whole Record, 64 Harv. L. Rev. 1233
(1951); Stason, "Substantial Evidence" in Administrative Law, 89 U. Pa. L. Rev. 1026
(1941); Stern, Review of Findings of Administrators, Judges, and Juries: A Comparative
Analysis, 58 Harv. L. Rev. 70 (1944). .
erroneous. 7 5 On issues not involving credibility, the trial examiner's
report may be given very little weightY"
This seems to be the same test as that applied to review of a jury's
verdict (either what is required to prevent a directed verdict or to
prevent setting aside a verdict). A jury may be given more leeway as a rule
by judges, for a verdict stands if there is any evidence at all in the record
to support it." r It is doubtful if this is the same test as that applied to
the appellate review of the decision of a trial judge sitting without a jury.
Here, the rule is usually phrased as allowing a reversal of the trial judge's
findings only if they are clearly erroneous. Many believe this is the same
as the substantial evidence test. 7 Others think not. Proponents of
substitutes 79 for the Administrative Procedure Act seeking to replace the
"substantial evidence" test with the "clearly erroneous" one seem to be
on both sides of the fence. Often, they8 0 argue that the two tests are
identical, so that no change would result except the elimination of the
confusion caused by asking judges to apply two differently-worded, but
175. FCC v. Allentown Broadcasting Corp., 349 U.S. 358, 364 (1955); Universal Camera
Corp. v. NLRB, 340 U.S. 474 (1951); Pierce v. SEC. 239 F.2d 160 (9th Cir. 1956);
American Flint Glass Workers v. NLRB, 230 F.2d 212 (D.C. Cir.), cert. denied, 351 U.S.
988 (1956); Utica Observer-Dispatch, Inc. v. NLRB, 229 F.2d 575 (2d Cir. 1956); NLRB
v. Pacific Intermountain Express Co., 228 F.2d 170 (8th Cir. 1955), cert. denied, 351 U.S.
952 (1956). See 2 Davis, Treatise § 10.04. As to the attitude of the Supreme Court in
reviewing decisions of the lower courts which have reviewed agency decisions, see NLRB v.
American Natl Ins. Co., 343 U.S. 395, 410 (1952); NLRB v. Pittsburgh S.S. Co., 340 U.S.
498, 502-03 (1951); Universal Camera Corp. v. NLRB, 340 U.S. 474, 490-91 (1951). But
see also Rowoldt v. Perfetto, 355 U.S. 115 (1957); FCC v. Allentown Broadcasting Co.,
349 U.S. 358, 363 (1955); Radio Officers' Union v. NLRB, 347 U.S. 17 (1954); O'Leary
v. Brown-Pacific-Maxon, Inc., 340 U.S. 504, 505-06 (1951).
176. But cf. Minneapolis-Honeywell Regulator Co. v. FTC,, 191 F.2d 786 (7th Cir.
1951), petition for cert. dimissed, 344 U.S. 206 (1952).
177. Cf. Wilkerson v. McCarthy, 336 U.S. 53, 57 (1949); NLRB v. Southland Mfg. Co.,
201 F.2d 244 (4th Cir. 1952); NLRB v. Deena Artware, Inc., 198 F.2d 645 (6th Cir. 1952),
cert. denied, 345 U.S. 906 (
); United Brick & Clay Workers v. Deena Artware, Inc., 198
F.2d 637 (6th Cir.), cert. denied, 344 U.S. 897 (1952).
178. Cf. NLRB v. Southland Mfg. Co., 201 F.2d 244, 250 (4th Cir. 1952); Vanderbilt,
Hoover Commission and Task Force Reports on Legal Services and Procedure-Symposium:
Introduction, 30 N.Y.U.L. Rev. 1267, 1268 (1955). But cf. FCC v. Allentown Broadcasting
Corp., 349 U.S. 358, 364 (1955); Universal Camera Corp. v. NLRB, 340 U.S. 474, 485,
492 n.21 (1951); United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948);
District of Columbia v. Pace, 320 U.S. 698, 701-02 (1944); NLRB v. Southland Mfg. Co.,
supra at 246; Orvis v. Higgins, 180 F.2d 537, 540 (2d Cir.), cert. denied, 340 U.S. 810
179. Section 1009(f) of the A.B.A. Proposed Code provides that a reviewing court
shall set aside agency orders if it finds they are "based upon findings of fact that are
clearly erronqous on the whole record . . . ." A.B.A. Proposed Code 196.
180. See Cooper, Judicial Review, 30 N.Y.UL. Rev. 1375, 1380-81 (1955); B. Schwartz,
Administrative Justice and its Place in the Legal Order, 30 N.Y.U.L. Rev. 1390, 1392-93
essentially identical, tests. At other times, they 8' argue that the proposed
change is not a mere semantic gesture, but designed to broaden the
amount of review. There seems little point to the proposal unless it
enlarges review, as it apparently would. Exactly how much the review
would be broadened is very difficult to determine.
Under the substantial evidence test there is a presumption that the
agency is correct because of its experience in the special field. The finding
of the trial judge, however, lacks this presumption because from the
standpoint of the appellate court, he has no expertness or special
experience in the particular field. Furthermore, a trial judge may be clearly
erroneous and yet not necessarily unfair in the sense of a willful attempt
to achieve a preconceived result by warping findings of fact. An agency
is not to be reversed for mere error, but only for error plus unfairness in
this sense. An agency is not an inferior tribunal or a lower court judge,
but rather an autonomous body, applying specialized knowledge and
experience to regulate areas demanding flexibility and complex judgments.
Courts cannot and should not be made to guarantee the correctness of
every agency decision. Rather it is their task to review the decision to
see that it is consonant with the law.
The effort here is to insure that the agency decision is based upon law
and upon legal evidence, instead of the mere will of the finder. The great
danger is not that the agency will, like a trial judge, err in weighing
testimony, since long experience in the special field may give the agency
added skill in this regard, but rather that the agency will appraise the
testimony by extra-legal standards, such as the exigencies of social policy.
All necessary facts should be found by reasoning from the evidence alone.
The criterion is whether the evidence gives rise to an appreciable
probability that conduces to the conclusion reached. If there are two fairly
conflicting views or inferences, the agency may choose either, even if the
reviewing court would choose the other or thinks the other more
probable. The reviewing court is not to weigh the evidence itself, to decide
upon credibility, to second-guess the agency, or to substitute one
rationally sustainable inference for another. Speculation and inference are
necessary and proper, but only if based upon a reasoned view of the
effect of the evidence.
Therefore, so far as drawing inferences from the facts is concerned,
the test is reasonableness rather than rightness. The issue is whether the
agency's conclusions may be reasonably based upon the proven facts.
181. See Holtzoff, Current Problems in Administrative Law, 9 Va. L. Weekly Dicta
Comp. 92 (
); Sellers, The American Bar Association's Legislative Proposals
Respecting Legal Services and Procedures, 24 ICC Prac. J. 1115, 1121 (1957). Cf. Carrow,
Administrative Adjudication: Should its Role be Changed?, 27 Geo. Wash. L. Rev. 279, 299
Many inferences, however, may become questions of law. This may
occur when either a court has once found them not merely permissive but
required if certain facts are proven; or a court has found it unreasonable
to draw them from certain proven facts.'82 In such cases, the issue may
then become whether the agency has correctly exercised the discretionary
powers conferred on it by statute. Also, of necessity, the line is often hard
to draw and in many close cases it may be impossible to distinguish
reasonableness from rightness.""s
Are there situations where narrow review is justified? Actually, except
for the draft board classification cases, the usual attempt to limit review
does not consist of formulating a narrower test than substantial evidence
for questions of fact. Instead, the availability of review is restricted to
certain factual questions only, such as fraud, want of power, gross
mistake, or bad faith. On any review of these specified issues of fact,
however, the test used is the substantial evidence one. This is what occurs in
the government bounty"" and government contract 815 cases. Review of
all other factual questions is then entirely denied. However, the number
of factual issues subject to review in these cases is often increased by
statute8 6 or judicial decision 8 7 to the point where review is available on
virtually all disputed questions of fact.
In the draft cases, 8 and possibly in the immigration cases, 189 the
Court has attempted to formulate a test which purports to give a lesser
amount of review on reviewable factual questions than would the
substantial evidence test. The draft test permits reversal of a finding of fact
only if there is no basis in fact for the finding. Actually, decisions
applying this test indicate that it is virtually as broad as the substantial
evidence criterion. Attempts to limit the amount of review of questions of
fact in this manner seem unwise if judicial review is to serve as an
effective check upon administrative power or its abuse. If a court allows any
review at all of a question of fact, it is difficult to render the review
meaningful short of a test as broad as substantial evidence on the whole
record. A possible narrower test might be one which did not take the
whole record into account in appraising the substantiality of the evidence.
Such a test seems undesirable.
189. The scope of judicial review may be trial de novo only on the issue of
citizenship in deportation cases. Ng Fung Ho v. White, 259 U.S. 276 (1922). But cf.
Kessler v. Strecker, 307 U.S. 22, 34-35 (1939); Tod v. Waldman, 266 U.S. 113 (1924),
modified, 266 U.S. 547 (1925); Chin Yow v. United States, 208 U.S. 8 (1908) (all indicating
that a trial de novo is seldom proper on other issues). Cf. Frank v. Rogers, 253 F.2d 889
(D.C. Cir. 1958) (trial de novo allowed). On other issues in deportation cases, except
perhaps those involving review of a suspension of deportation, the scope of review seems to
be the substantial evidence rule (see the Ng Fung Ho case, supra), but in exclusion cases
the scope of review perhaps may be less. See notes 34-37 supra. Here, too, there is an
attempt to use the scope of review for habeas corpus as the test, but in fact the scope there
is usually as broad as the substantial evidence rule. See note 188 supra. Thus, in alien
cases the Court first denied review entirely. Lem Moon Sing v. United States, 158 U.S. 538
(1895). Then review of procedural fairness was allowed even in an exclusion case. Chin
Yow v. United States, 208 U.S. 8, 13 (1908). Then review of questions of law by habeas
corpus was allowed. Gegiow v. Uhl, 239 U.S. 3 (1915). Gradually the scope of review has
been extended to the evidence itself. Cf. Hekkinen v. United States, 355 U.S. 273 (
Bridges v. Wixon, 326 U.S. 135 (1945); Lloyd Saubaudo Societa v. Elting, 287 U.S. 329
(1932); United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U.S. 103
(1927); Yiannopoulos v. Robinson, 247 F.2d 655 (7th Cir. 1957); Mar Gong v. Brownell,
209 F.2d 448 (9th Cir. 1954); Carmichael v. Wong Choon Ock, 119 F.2d 173 (9th Cir.
1941); Nagle v. Eizaguirre, 41 F.2d 735 (9th Cir. 1930); Gung You v. Nagle, 34 F.2d 848
(9th Cir. 1929). Also see Kessler v. Strecker, supra; 3 Davis, Treatise § 23.08; notes
3437, 149 supra. But cf. Heikkila v. Barber, 345 U.S. 229 (
) ; note 149 supra.
Is wider review warranted? In studying some 188 decisions
reviewing agency orders in the federal courts during a five year period,
Professor Cooper 19 0 has reached the conclusion that in amending the
Administrative Procedure Act, the clearly erroneous test should be substituted
for the present substantial evidence test. He argues, first, that the
substantial evidence test is not a precise, uniform, or objective one, because
the different circuits apply it differently; and even the same circuit varies
its application to different agencies. 191 However, this may be a merit
instead of a defect, because the test should and must leave much to the
discretion of individual judges. Moreover, it is unlikely that the clearly
erroneous test would be any more precise, uniform, or objective if
applied by courts to agencies. Some agencies would still be more strictly
reviewed than others, and some circuits would still be more strict on
judicial review than others. Thus, Professor Cooper points out that some
circuits, especially the fifth, are far more strict on review than others,
such as the second, in the case of agencies such as the NLRB.192 This
difference would hardly vanish under the clearly erroneous test. Possibly
the Second Circuit would expand its review then, but the Fifth Circuit,
however, instead of retaining its present standard, might expand its
review even further. Moreover, Professor Cooper seems to assume that the
scope of review now applied by such courts as the Fifth Circuit is
preferable to that of the Second Circuit. Others would disagree. The Fifth
Circuit sometimes appears to weigh the evidence for itself, and frequently
rejects the experience and expertness of the agency in a special field,
ignoring the particular competence of the agency. 93 If an amendment to
the Administrative Procedure Act could reduce the scope of review in the
Fifth Circuit to that in the Second Circuit, perhaps it should be adopted.
Statutory language is unlikely to do this. Probably another opinion by
the Supreme Court is the only remedy.
Professor Cooper"9 also points out the difficulty of distinguishing the
substantial evidence test from the clearly erroneous one. Amendment of
the Administrative Procedure Act by insertion of the clearly erroneous
test would be followed by a long period of confusion while the courts
determined to what extent, if at all, review had been broadened by the
amendment. Professor Cooper believes that the courts often apply the
substantial evidence test not only to findings of fact, but also to the
reasonableness of inferences from these findings.1 95 The test for inferences,
he believes, is simply whether they are clearly unreasonable or palpably
unjustifiable. The real problem, perhaps, as Professor Cooper points
out,'96 is that it is often hard to separate facts from inferences drawn
from facts, or from questions of law or discretion. Some courts, whose
approach he admires, often confuse the drawing of inferences from facts
with the problem of whether an agency has correctly exercised discretion
conferred upon it. 9 ' The approach of these courts, contrary to the views
of Professor Cooper,198 does not seem always proper for statutory
sanction. Where it is possible to draw fairly conflicting rational inferences
from the evidence, the choice made by the agency should usually bind the
reviewing court. This follows because the choice depends on judgments
based on long experience in a special field, such as the relation of a given
fact pattern or occurrence to characteristic patterns in the special field
(e.g., was a worker fired for incompetence or for union leadership?).
Inferences often reflect policy choices, on which the agency often should
have final say, so long as its determination is reasonable. 9 9 Professor
Cooper also believes the substantial evidence test was designed especially
for the NLRB and is not suitable for other agencies. 0 0 In fact, the
substantial evidence test was developed long before the advent of the
NLRB2°' and in a remarkable manner has been adapted by courts to
almost all agencies, regardless of differing statutory language.
There may be some special needs for broader review. First, certain
agencies perform a vast volume of business, mostly routine, which is
handled mechanically. Here speed, low costs, quick payment and decision
are essential. Proceedings are seldom adversary, for the agency exists to
help the claimant. There is often a system of intra-agency appeals. In
the rare case of rejection of a disputed claim of any merit, judicial
review by trial de novo may be preferable to any hearing, record, and
reasoned decision by the agency (unless the intra-agency appeal has
established a record for judicial review). There also may be cases where broad
review is needed to overcome an agency bias in favor of a group which
Should there be broader review of constitutional or jurisdictional fact
questions? 202 The first problem here is how to separate such facts from
202. The leading cases are: (1) Ohio Valley Water Co. v. Ben Avon Borough, 253 U.S.
287 (1920) (independent judicial judgment required for due process on issue of confiscation
in public utility rate-making; the doctrine of the case is virtually obsolete in the federal
courts due to decisions as FPC v. Hope Natural Gas Co., 320 U.S. 591 (1944) and FPC v.
Natural Gas Pipeline Co., 315 U.S. 575 (1942)). (2) St. Joseph Stockyards Co. v. United
States, 298 U.S. 38 (1936) (following but modifying the Ben Avon rule: all findings of
fact on issue of excess of constitutional authority, which involves denial of the constitutional
right respecting persons or property, are subject to independent judicial review, but
judicial review must consider administrative findings and reasoning which are presumed
correct and not to be disturbed unless plainly shown to be overborne. Cf. American Trucking
Ass'ns v. United States, 344 U.S. 298, 320-23 (
); Railroad Comm'n v. Rowan &
Nichols Oil Co., 311 U.S. 570 (1941); Railroad Comm'n v. Rowan & Nichols Oil Co., 310
U.S. 573 (1940); Acker v. United States, 298 U.S. 426 (1936); Safe Harbor Water Power
Corp. v. FPC, 179 F.2d 179, 201 (3rd Cir. 1949), cert. denied, 339 U.S. 957 (
) ; Cities
Serv. Gas Co. v. FPC, 155 F.2d 694, 698 (10th Cir.), cert. denied, 329 U.S. 773 (1946).
(3) Ng Fung Ho v. White, 259 U.S. 276 (1922) (judicial trial de novo required by due
process for an issue of citizenship if a substantial showing of citizenship is made in deportation of
residents). Cf. Crowell v. Benson, 285 U.S. 22 (1932). In cases of private right-liability of
one person to another, such as workmen's compensation--certain jurisdictional facts, as
occurrence of injury on navigable waters in admiralty cases and existence of employment
relation in workmen's compensation, must be tried de novo in courts as part of the
judicial function under article ][I. This rule applies to all facts which are a basis for
constitutional exercise of power. There is dicta that this rule also applies to facts basic to
an exercise of statutory authority, at least if the person seeking review is potentially the
object of enforcement. But cf. NLRB v. Hearst, 322 U.S. 111 (1944). See 4 Davis,
Treatise § 29.08-.09; Jaffe, Judicial Review, Constitutional and Jurisdictional Fact, 70 Harv.
L. Rev. 953 (1957).
Today, so far as granting an enlarged scope of review is concerned, the cases above are
almost entirely confined to (1) deportation hearings involving a claim of citizenship; (2)
workmen's compensation cases in admiralty on issues of existing employment relationship
or occurrence on navigable waters. See Alabama Pub. Serv. Comm. v. Southern Ry., 341
U.S. 341, 348 (1951); Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469 (1947); Davis v.
Department of Labor, 317 U.S. 249, 256-57 (1942); Del Vecchio v. Bowers, 296 U.S. 280
(1935); Voehl v. Indem. Ins. Co., 288 U.S. 162 (1933); L'Hote v. Crowell, 286 U.S.
528 (1932), reversing 54 F.2d 212 (5th Cir. 1931); Western Boat Bld. Co. v. O'Leary, 198
F.2d 409 (9th Cir. 1952); Gudmundson v. Cardillo, 126 F.2d 521 (D.C. Cir. 1942); South
Chicago Coal & Dry Dock Co. v. Bassett, 104 F.2d 522 (7th Cir. 1939), aff'd, 309 U.S. 251,
257-58 (1940) ; note 189 supra.
Some state courts still apply the Ben Avon rule to public utility rate-making. Cf. Southern
Bell Tel. & Tel. Co. v. Tennessee Pub. Serv. Comm., 304 S.W.2d 640 (Tenn. 1957); Opinion
of the Justices, 328 Mass. 679, 106 N.E.2d 259 (1952) ; Note, 102 U. Pa. L. Rev. 108 (
other disputed facts in the case. No one has yet come up with a logical
test. Yet, elusive though the category may be, there do seem to be some
facts in certain situations which are more essential than others, stressed
more by the relevant statute, related perhaps to areas of extremely
narrow discretionary administrative powers. There are also facts about which
it is easier to be objective, to give hard and fast answers, or to view things
as black or white (such as the issue of citizenship in deportation).
Moreover, when a court feels a very grave and fundamental error has been
made by the agency, it is apt to speak in terms of jurisdictional fact to
indicate that the agency act is void. The feeling may well be that a
tribunal of limited jurisdiction should not be the final judge of its own
powers and limits. The judicial function must and should include the
power to decide de novo facts relevant to constitutional limits on state
power, as in civil liberties cases.
Another problem is whether the Constitution sets a maximum limit
upon the extent of review in the federal courts, at least for courts
established under article III of the Constitution. The Supreme Court has
indicated that it does in order to prevent these courts from engaging in
socalled non-judicial activities-legislative or administrative. This happens
if the court simply repeats what the agency is supposed to do.20 3 The
basic notion here, doubtless, is that courts should not determine purely
subordinate legislative policies about rates or licenses.
No formulas for review of factual issues issues can avoid giving wide
discretion to judges. The substantial evidence rule, in theory, tells a
judge not to weigh evidence, determine credibility of witnesses, or choose
from among various reasonable inferences or between conflicting
testimony. In fact, however, there is little doubt that judges can and do
perform these supposedly forbidden things even when purportedly
applying the substantial evidence rule. The line between what is and what
is not allowed by the rule cannot always be drawn clearly and firmly.
XVII. JUDICIAL REvrEw OF QUESTIONS OF "LAW"
A much disputed matter is judicial review of questions of law decided
by an agency. There is considerable support for the view that all
questions of law should be decided independently by the judges. Proposals" 4
to this effect have been made as substitutes for the Administrative
Procedure Act to clarify its language2 0 5 which has yet to accomplish this
The present state of the problem is that while some questions of law
are decided independently by judges, others, which are often labeled
either questions of fact or questions of discretion, are reviewed only to
determine either their reasonableness or their adherence to the limits of
the agency's powers. The difficult problem is to determine which questions
of law are fully reviewable and which are not, and the reasons therefor.
The troublesome cases involve concrete application of legal concepts.
Often Congress has used broad statutory terms, such as "employee,"
which must be applied to a particular fact situation. There is language in
several Supreme Court opinions 0 7 which seems to say that any
reasonable interpretation of the statutory term must be accepted by a reviewing
204. Section 1009(f) of the A.B.A. Code provides: "In all cases under review the court
shall determine all questions of law and interpret the statutory and constitutional
provisions involved and shall apply such interpretation to the facts duly found or established."
A.B.A. Proposed Code 196. It also provides for the setting aside of an agency order which
is an "abuse or dearly unwarranted exercise of discretion." A.B.A. Proposed Code 196.
Section 10(e) of the present Act merely refers to "an abuse of discretion." 60 Stat. 243
(1946), 5 U.S.C. § 1009(e) (1952).
205. Section 10(e) provides that "so far as necessary to decision and where presented
the reviewing court shall decide all relevant questions of law, interpret constitutional and
statutory provisions, and determine the meaning or applicability of the terms of any
agency action. It shall (A) compel agency action unlawfully withheld or unreasonably
delayed; and (B) hold unlawful and set aside agency action, findings and conclusions found
to be (1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law; (2) contrary to constitutional right, power, privilege, or immunity; (3) in excess of
statutory jurisdiction, authority, or limitations, or short of statutory right; (4) without
observance of procedure required by law. . . . " 60 Stat. 243 (1946), 5 U.S.C. § 1009(e)
206. Cf. NLRB v. Coca-Cola Bottling Co., 350 U.S. 264 (1956); Howell Chevrolet Co.
v. NLRB, 346 U.S. 482 (
); O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504
207. See, e.g., NLRB v. Coca-Cola Bottling Co., 350 U.S. 264 (1956) (CIO Regional
Director not a union "officer"); O'Leary v. Brown-Pacific-Maxon Co., 340 U.S. 504, 508
(1951) (whether death was in course of employment); SEC v. Chenery Corp., 332 U.S.
194 (1947) (meaning of "fair and equitable" and "detrimental to the public interest or the
interest of investors or consumers"); NLRB v. Hearst Publications,. Inc., 322 U.S. 111
(1944) (whether newsboys are employees under the Wagner Labor Act); Gray v. Powell,
314 U.S. 402 (1941) (meaning of statutory term exempting one both a producer and
consumer of coal). See also Rochester Tel. Corp. v. United States, 307 U.S. 125, 146 (1939) ;
Shields v. Utah Idaho Cent. R.R., 305 U.S. 177, 185 (1938); Mississippi Valley Barge Line
Co. v. United States, 292 U.S. 282, 286-87 (1934); ICC v. Union Pac. R.R., 222 U.S. 541,
court. The Supreme Court itself, however, has never consistently followed
such a view.2°8
The initial problem is to separate questions of law from questions of
fact. Unfortunately, whether the court is determining law or fact may be
unclear, since applying legal concepts involves both law and facts. It is
not surprising, therefore, to find much confusion here. Moreover, courts
have tended to label questions "law" or "fact" not because of a logical
analysis of the issues but rather because of practical considerations." 9
Nowhere is this truer than in judicial review of agency decisions. The
court's choice of a "fact" or "law" label for a question may be motivated
by its determination as to whether the appropriate scope of review is
either the substantial evidence test-the reasonableness or rational basis
approach-or the independent judgment, rightness, or substitution of
judgment test. If the former, then the "fact" label is used; if the latter,
the "law" label. If the court decides to substitute its judgment for that
of the agency, it can always do so by labeling the question one of "law."
If it does not wish to do so, it can either label the issue as one of fact or
discretion, or else as one of law, but, despite this, apply the test of
There are many questions of law, strictly speaking, which clearly
de208. See, e.g., Office Employees v. NLRB, 353 U.S. 313 (1957) (Court substituted views
as to who are "employees"); NLRB v. American Ins. Co., 343 U.S. 395 (1952) ("good
faith" in bargaining with the union); NLRB v. Highland Park Mfg. Co., 341 U.S. 322
(1951) (Court in upholding lower court disagreed with the view of the NLRB as to who
were labor union officials required to file non-communist oaths) ; Packard Motor Car Co. v.
NLRB, 330 U.S. 485 (1947) (whether foremen were employees; Court upheld the Board
in deciding issue itself); Board of Governors of Fed. Reserve Sys. v. Agnew, 329 U.S. 441
(1947) (Court independently upheld Board's interpretation of statutory phrase); Social
Security Bd. v. Nierotko, 327 U.S. 358 (1946) (Court reversed agency ruling that back
pay awarded by NLRB was not wages for social security); Railroad Retirement Bd. v.
Duquesne Warehouse Co., 326 U.S. 446 (1946) (who is an employee); Unemployment
Compensation Comm. v. Aragon, 329 U.S. 143 (1946) (agency decides what is a labor dispute
and was it in progress; Court decides if dispute was at place of employment).
209. See Dobson v. Commissioner, 320 U.S. 489 (1943) (where the Court assessed the
comparative qualifications of the Tax Court and the courts in deciding whether to label
an issue one of fact, so that the court's judgment should not be substituted for that of
the agency). Cf. FTC v. Standard Oil Co., 355 U.S. 396 (
); Alleghany Corp. v.
Breswick & Co., 353 U.S. 151 (1957); O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S.
504, 508 (1951); Colorado Interstate Gas Co. v. FPC, 324 U.S. 581, 590 (1945); Swift
& Co. v. United States, 316 U.S. 216, 225 (1942) ; Shields v. Utah Idaho Cent. R.R., 305
U.S. 177 (1938); Adams v. Mills, 286 U.S. 397, 409-10 (1932); Manufacturer's Ry. v.
United States, 246 U.S. 457, 481 (1918). In all these cases the Court treated the issue as one
of fact and refused to substitute its judgment for that of the agency. Yet, in every case the
issue could have been labeled one of law, for the meaning of a statutory term was involved
to some extent as to whether certain admitted facts fell within the scope of statutory
language. The same result could also be reached even if the issue were labeled law, but the
Court still applied the test of reasonableness, as it sometimes seems to do.
mand the expertness of the agency. This is particularly true when the
problem is to apply a so-called statutory standard-such as fair return
or public interest-to a set of facts. A court can label this an issue of
"fact" and so avoid substituting its judgment for that of the
administrator. Or it can label it one of "law," but still apply a test of
reasonableness. Whatever the label chosen, the court should consider certain
basic problems, the first of which is whether the issue was one for
Courts should always decide by an independent judgment whether the
agency has stayed within the limits set on its discretionary authority to
interpret the statute. The agency's interpretation may be reasonable
and highly relevant to the purpose of the statute, but still not acceptable
if outside the relevant limits the court believes the statute authorized the
agency to apply. The court's task is to decide whether the agency
considered relevant or irrelevant factors in applying a statutory standard.
However, once the court determines the standards of relevancy, the
agency alone applies these standards to the facts. Courts interfere then
only if the findings of the agency are unreasonable, arbitrary, or harsh
under these standards. °
As a general proposition, there should be a presumption that the
legislature always means to give an agency some discretionary power to make
choices within certain limits, this, after all, being one of the chief reasons
for entrusting the agency with its job. The decisive issue is whether this
particular question of law was left to the discretion of the agency, which
only a court can decide. In view of the statutory purpose, as the court
sees it, is the agency's interpretation of the statute's meaning within the
range of choices given the agency by the legislature? If the court decides
that the question has been left to agency discretion, the only issue left
for the court is whether the rule is a reasonable one. In effect, the court
then refuses to interpret the statute or to pronounce the rule of law, but
leaves it up to the reasonable discretion of the agency. Even in these
cases, however, where the agency pronounces the rule itself or applies the
rule to the facts, the court, on judicial review, has two functions: (1) to
pass independently upon the reasonableness of the rule or its application;
and (2) to decide independently if the pronouncement of the rule or its
application falls within or without the discretionary powers of the agency.
On the other hand, when the court decides the agency lacks discretionary
power to announce or apply the rule, then the court itself may undertake
to do so.
The problem of questions of law and of statutory interpretation is
closely related to the exercise of the agency's rule-making functions. A
210. Cf. NLRB v. Seven-Up Bottling Co., 344 U.S. 344, 346 (
); Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 198 (1941).
distinction is usually made between legislative rules"' which fill in "gaps"
in a statute and which the statute expressly authorizes the agency to
make, and rules2 2 which merely "interpret" a statute and which are based
solely upon the implied powers of the administrator. The criteria for this
distinction are often confusing. Legislative rules usually are those which
the administrator is expressly empowered by statute to make, but they
also may be based only upon an implied grant of power. Interpretative
rules are ordinarily issued in reliance upon implied powers, but their
issuance may be expressly authorized by statute. Strictly speaking, many
legislative rules obviously do "interpret" a statute. On the other hand,
socalled interpretative rules often do not interpret. The truth is that almost
any agency power to make rules or to adjudicate cases has the
concomitant power to make law, to fill in some statutory gaps and to
interpret some statutory language.
Perhaps a significant distinction would be three-fold. First, there are
legislative rulings without which a statute would impose duties on no
one, as contrasted with interpretative rulings which are not essential in
this manner for the operation of the statute. Interpretative rulings may
either be formally adopted as binding by the agency or like interpretative
bulletins of the Wage and Hour Administrator, enforcement rulings which
announce general agency policy in the enforcement of a statute in order,
primarily, to guide those charged with the enforcement of the law.
In any event, the ultimate distinction is not between rules which are
"interpretative" and those which are "legislative," in the usual meanings
of these words. Nor is the distinction between those rules based upon
implied powers and those based on express powers. The decisive factor is
211. United States v. Howard, 352 U.S. 212 (1957); United States v. Storer
Broadcasting Co., 351 U.S. 192 (1956); Mitchell v. Budd, 350 U.S. 473 (1956); American Trucking
Ass'ns v. United States, 344 U.S. 298 (
); Addison v. Holly Hill Fruit Prods., Inc.,
322 U.S. 607 (1944); NBC v. United States, 319 U.S. 190, 224 (1943); Federal Security
Agency v. Quaker Oats Co., 318 U.S. 218 (1943); Opp Cotton Mills, Inc. v. Administrator,
312 U.S. 126, 154-55 (1941); American Tel. & Tel. Co. v. United States, 299 U.S. 232, 236-37
(1936) ; Houston v. Saint Louis Independent Packing Co., 249 U.S. 479 (1919). Cf. United
States v. Hvass, 355 U.S. 570, 575 (
). See Alvord, Treasury Regulations and the
Wilshire Oil Case, 40 Colum. L. Rev. 252 (1940); Griswold, A Summary of the Regulations
Problem, 54 Harv. L. Rev. 398 (1941); Feller, Addendum to the Regulations Problem, 54
Harv. L. Rev. 1311 (1941); Surrey, The Scope and Effect of Treasury Regulations under
the Income, Estate and Gift Taxes, 88 U. Pa. L. Rev. 556 (1940).
212. FCC v. American Broadcasting Co., 347 U.S. 284 (1954); United States v. Zazove,
334 U.S. 602 (1948); Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 290
(1946); Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Addison v. Holly Hill Fruit
Prods., Inc., 322 U.S. 607 (1944) (legislative rule interprets statute). Sections 4(a) and
(c) of the Administrative Procedure Act exempt "interpretative rules" from requirements
of notice and publication. 60 Stat. 238 (1946), 5 U.S.C. § 1003 (1952). There is no such
exemption in the A.B.A. Proposed Code.
the amount of power or discretion expressly or impliedly conferred on the
administrator by Congress.
The question is whether Congress intended the administrator to have
any power to make law, and if so, how much. Congress may have
conferred narrow or broad law-making powers on the agency. The court
should not substitute its judgment for that of the administrator when
Congress has given the administrator the primary law-making power on
the issue. Thus, as in other questions of statutory construction, the
problem is whether Congress meant for the courts or for the agency to
interpret the language or to decide this matter. It is for the court
independently to determine what Congress meant. If the court decides that the
agency has the primary power, then it may label the rule "legislative."
This means that the rule is valid if the agency has followed the correct
procedure, stayed within statutory and constitutional authority, acted
reasonably, and relied upon substantial evidence. The court will not
substitute its judgment for that of the agency in passing upon the validity of
the "legislative" rule. On the other hand, if the court decides that it has
this primary power of rule-making on the issue, then it may label the rule
"interpretative." This means that the court may, if it wishes, pass upon
the wisdom of the rule and substitute its judgment for that of the agency.
The rule may be valid only if the court agrees with the agency. Actually,
however, this distinction is often misleading because even in the case of
"interpretative" rules, the court often will give great weight to the views
of the administrator and merely inquire to see if the statute permits the
agency to make the rule. In any event, the scope and nature of judicial
review should be governed by the same criterion for rules as for other
questions of law. True, there may be more discretion conferred upon the
agency by the statute; but even so, it is up to the court to decide if the
limits of that discretion have been exceeded and the discretionary power
The next problem which must be faced is what factors enter into a
court's determination as to whether it should independently determine
the correct rule of law or application, thus denying policy-making or
discretionary power to the agency, or whether it should leave this decision
up to the discretionary power of the agency, within limits. Mere
ambiguity in a statute is not enough to prove that the right to exercise
discretion has been given the administrator. A court may be convinced that
it is unwise to take an independent view of the law, but if that court
believes that the administrative interpretation exceeds the agency's
discretion, it can, and should, intervene.
When should a court hold that while several views are possible and
reasonable, only one is correct? There are several elements to consider
here. 213 First, and perhaps most important, is the extent to which
interpretation of the statute, and the framing and application of the rule,
require the expert experience of the agency in its special field.214 The
relevance and weight of this expertness must be evaluated by the court.
This aspect involves a comparison of the qualifications of agencies and
courts. Unfortunately, the criterion of comparative qualifications is often
not decisive because both court and agency may be equally competent on
the particular problems involved. On certain matters, however, courts
seem especially well qualified to pass judgment, such as those involving
interpretation of the common law; analysis of legislative history
(particularly if political conflicts are at stake rather than legislative inquiry
into the technical problems of the agency's specialized work); common
law type problems of ethics or fairness; problems extending into fields
outside the agency's special area; problems presenting, or even
substantially affected by, constitutional questions; and judge-made law growing
out of statutory interpretation. 1 5
To say that courts are specialists in statutory interpretation (either as
to the meaning of words or legislative history) contains some truth, but
ignores the fact that the subject-matter may often be technical or
nonlegal, or involve an area in which the legislature intended that the agency's
policy should be developed through use of its own discretion. The
particular element involved in construction of the statute may be decisive.
If the question concerns the general purpose of the statute, this calls for
judgment as to statutory language, its legislative history, and the social
and economic conditions responsible for its enactment. Here courts would
usually seem as well, if not better, qualified than agencies to make
determinations. However, as the purpose becomes more specific, there may
be more need for an agency's special knowledge. If the problem
pre213. See Jaffe, Judicial Review: Question of Law, 69 Harv. L. Rev. 239 (1955); 4
Davis, Treatise ch. 30; Note, 42 Minn. L. Rev. 271 (1957).
214. Cf. Moog Industries, Inc. v. FTC, 355 U.S. 411, 413-14 (
); Frank Bros.
v. NLRB, 321 U.S. 702 (1944) ; Board of Trade v. United States, 314 U.S. 534, 548 (1942) ;
NLRB v. P. Lorillard Co., 314 U.S. 512 (1942); Railroad Comm. v. Rowan & Nichols Oil
Co., 310 U.S. 573, 581-84 (1940); United States v. Louisville & Nashville R.R., 235 U.S. 314
(1914); Director v. Princess Elkhorn Coal Co., 226 F.2d 570, 574 (6th Cir. 1955); NLRB
v. Standard Oil Co., 138 F.2d 885, 887 (2d Cir. 1943).
215. See, e.g., FCC v. RCA Communications, Inc., 346 U.S. 86 (
) (national policy
of competition); Henderson v. United States, 339 U.S. 816 (
) (racial discrimination
on railroads); Davies Warehouse Co. v. Bowles, 321 U.S. 144 (1944) (legislative history);
SEC v. Chenery Corp., 318 U.S. 80 (1943) (principles of equity and common law);
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941) (common law fairness in unfair
labor practice). One may question the judicial abdication in SEC v. Chenery Corp., 332
U.S. 194 (1947), where the question concerned the further extension of the common law
principle of fiduciary obligation. Cf. SEC v. Cogan, 201 F.2d 78 (9th Cir. 1951) (court
decided the proper fiduciary standard).
sented is which statutory interpretation will best carry out this statutory
purpose, the agency has expertness here and may be intended by the
legislature to decide this very issue. Frequently there are several
interpretations consistent with the statutory purpose, all equally reasonable, from
which a choice-presumably by the expert agency-must be made.
Whether the4i7tatutory words will actually bear the meaning given by
the agency, or whether the agency's views violate any clear policies of our
society-are matters which the courts should determine.
A second factor is the clarity with which the rule can be enunciated.
A court may desire to assume jurisdiction over the matter only if it can
delineate a rule which can serve as a future guide to the parties and the
administrator. If a clear-cut rule, stable in form and context, cannot be
drawn, it may be desirable to leave the matter to the agency's discretion.
A third factor is the nature of the administrative proceeding in
question. The more thorough and impartial the administrative proceeding, the
less apt is the court to substitute its judgment for that of the
administrator. This requires inquiry into such ma.tters as did an agency mem-_
ber or a subordinate issue the ruling; was it made by an enforcing or an
adjudicating official; was the rule formulated by an ex parte hearing or
after a public hearing-not necessarily an adversary one-in which
opposing viewpoints of counsel were adequately presented and considered
in the agency decision.2 16
A fourth factor is the intent of Congress concerning allocation of
functions between the court and the agency, as revealed by the existence of
any clear legislative preference that the administrator, and not the courts,
should have the primary power of passing upon this matter of discretion
or judgment. 17 This criterion is particularly useful in dealing with
rulemaking powers of administrators, for it is often the real distinction
between legislative rules 18 (those the legislature meant the agency to
promulgate as law) and interpretative ones 19 (those issued by the agency
without such legislative delegation of power). Unfortunately, it is
often impossible to tell to what extent Congress intended to delegate law
making power to an agency. The courts have particularly emphasized that
legislative delegation of power to fashion appropriate remedies is usual.220
216. See Fishgold v. Sullivan Drydock & Repair Co., 328 U.S. 275, 290 (1946);
Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944).
217. SEC v. Chenery Corp., 332 U.S. 194, 207 (1947); Gray v. Powell, 314 U.S. 402,
218. American Trucking Ass'ns v. United States, 344 U.S. 298, 309 (
); NBC v.
United States, 319 U.S. 190 (1943); American Tel. & Tel. Co. v. United States, 299 U.S.
) ; Pacific States Box & Basket Co. v. White, 296 U.S. 176, 186 (1935).
219. Skidmore v. Swift & Co., 323 U.S. 134 (1944).
220. Moog Industries, Inc. v. FTC, 355 U.S. 411 (
); NLRB v. Seven-Up Bottling
Co., 344 U.S. 344 (
) ; FTC v. Ruberoid Co., 343 U.S. 470 (1952).
Courts seem inclined to interfere very littlb with agency discretion in
imposing sanctions and penalties to obtain compliance with a statute,221
unless the agency has clearly exceeded its statutory powers. 222
A fifth factor is the relative importance of the legal problem to the
statutory scheme. This involves an inquiry as to whether such a problem
is fundamental2 23 (a general concept) or comparatively mirror 224 (such as
application of a concept to a unique fact). For example, a court may
substitute its own judgment for the agency's in formulating criteria, but
allow the agency wide discretion in using the broad criteria. The
difference is between applying and generalizing, between making broad
policy and administering details, and between deciding broad questions
or narrow ones. Thus, a court may enumerate an important proposition,
such as the absence of a national policy of competition or the
inapplicability of common law rules for defining employees under a statute, and
then leave to the agency the task of choosing in a specific case between
monopoly and competition,225 or defining in a specific case,
Two other important elements to be taken into account are whether
there has been a consistent, prolonged adherence to the same view by
the agency and parties most affected; 22 7 and whether the administrative
interpretation was made contemporaneously with the enactment of the
statute by those responsible for carrying out the statutory program who
were familiar with the legislative intent.18 An administrative
interpretation of a statute is at least some evidence that the statutory language
may denote this meaning, and that this meaning, ordinarily, is a natural
one. If this ruling also is widely accepted and consistently followed,
considerations of stable transactions may lead to its judicial acceptance.
Experience may show this is the meaning the words should bear. At the
least, a uniform interpretation by an agency charged officially with
responsibility for a statute must 'be given some weight by a court. It may
be given conclusive weight if the interpretation is consistent with the
purpose properly attributed to the statute in the court's judgment, and if
it is arrived at with proper regard for the factors which should, in the
court's opinion, be considered in spelling out that purpose.
Finally, there are certain other factors often considered, such as
whether the statute was re-enacted after the issuance of the
administrative interpretation by legislators with knowledge thereof;2 29 the
psychological advantage of having the prestige of a court pronouncing
the rule itself, instead of the agency; and fundamental responsibility of
the judiciary to impart unity and coherence to our legal system and to
see that an agency remains consonant with our legal order and its
In the last analysis, any formula. leaVes much discretion to a judge.
If he adopts a test allowing substitution of his judgment, he may still
lend much weight to the administrative views. If he follows the test of
reasonableness, he must also determine whether the agency has exceeded
what he deems are the limits of its discretionary power. In fact, in many
cases, the two tests seem to interblend so that it is impossible to ascertain
which one the court actually applied. 3 0
An unqualified rule that all questions of law must be decided
independently by the courts is improper and unwise. Certain questions of law
are better left to the agency to decide, if it acts reasonably. To the
prac228. See FHA v. Darlington, Inc., 358 U.S. 84 (
); Skidmore v. Swift & Co., 323
U.S. 134, 139-40 (1944); White v. Winchester Country Club, 315 U.S. 32, 41 (1942);
United States v. American Trucking Ass'ns, 310 U.S. 534, 549 (1940)., But cf. Trust of
Bingham v. Commissioner, 325 U.S. 365 (1945).
229. See Service v. Dulles, 354 U.S. 363, 380 (1957); NLRB v. Gullett Gin Co., 340
U.S. 361, 366 (1951); Wilmette Park Dist. v. Campbell, 338 U.S. 411, 417-18 (1949); Crane
v. Commissioner, 331 U.S. 1, 7-8 (1947); Commissioner v. Flowers, 326 U.S. 465, 469
(1946); Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110, 115-17 (1939). But cf.
United States v. Calamaro, 354 U.S. 351, 359 (1957); Helvering v. Reynolds, 313 U.S. 428,
431-32 (1941); Helvering v. Wilshire Oil Co., 308 U.S. 90, 100-01 (1939); Biddle v.
Commissioner, 302 U.S. 573, 582 (1938).
230. Cf. NLRB Y. Truck Drivers Local Union, 353 U.S. 87 (1957); NLRB v. Babcock
& Wilcox Co., 351 U.S. 105 (1956); East Texas Lines v. Frozen Food Express, 351 U.S.
49 (1956) ; Social Security Bd. v. Nierotko, 327 U.S. 358 (1946).
tical wisdom of judges, therefore, must be left the determination of which
questions of law are for administrators, which for courts, to decide.
Judicial review is a keystone and far too essential a part of the
administrative process to be frozen into a rigid mold. To function at its best,
much must be left to the discretion of both administrators and judges. If
we do not trust judicial discretion, then judicial review cannot be regarded
as an effective method of using the administrative process in a democratic
society with a minimum of harm to individual rights and liberties. If the
scope of review is unduly broadened, however, we will so overwhelm the
courts as to make it impossible for them to be effective in performing
their essential duty of insuring that agencies abide by the law.
Government will not be able to secure competent administrators if more and
more power is given to courts and examiners, less and less to
The time is not yet ripe to adopt legislation which would prevent
further experimentation. We have learned much about the administrative
process in the last few decades. There is every prospect that such
knowledge will increase rapidly in the future, for the growth of the
administrative process seems inevitable as we try to cope with the new problems
presently confronting society. Now is an inopportune moment to ignore
the great need for continued experimentation and knowledge. We
desperately need every resource available to insure that state control and
regulation will be exercised fairly, and with due regard for individual
rights and liberties, since there is no escape from the allocation of
discretionary powers to government officials.
To transfer administrative functions, even those of an adjudicative
nature, to the courts on the theory that the problems facing the agencies
have now been solved is to close our eyes to present realities. Perhaps if
given another chance, we might well have used tools other than
administrative agencies for certain matters, such as the authority granted to the
post office and customs in fraud and censorship cases, and to the
Immigration Service in alien and naturalization affairs. These tasks involve
important issues affecting individual liberties, where the need for
courtroom hearings and procedures to ascertain facts from conflicting oral
testimony is imperative. They might have been better handled in the
courts, but interested agencies, however, have gradually reformed their
procedures and evolved measures which seem, on the whole, reasonably
satisfactory.23 ' To transfer their functions to the courts now seems
unnecessary and might cause prolonged confusion. To a large extent, after
231. See Jaffe, Basic Issues: An Analysis, 30 N.Y.U.L. Rev. 1273, 1289 (1955).
all, it is Congress and the electorate who are responsible for the kind of
treatment given aliens. Nor is it wise to transfer the functions of the
NLRB or the FTC to the judiciary, even if these agencies do prosecute,
as well as regulate, transcend all industries, and rely more upon
adjudication than rule-making to establish and enforce their policies.2. 32 The
problems confronting these agencies are far from solved, because in our
dynamic society new ones constantly arise. Yesterday's precedents
provide little guidance for the solution of today's problems.
Questions about the availability and extent or scope of review are far
from solved. Further study is necessary to determine how to remove
obstacles to effective judicial review raised by rigid rules about standing,
timing, and methods. Emphasis should be given to the development of
agency procedures which facilitate and insure effective judicial review of
agency actions. This involves insistence on such matters as adequate
hearings (not necessarily formal trials), reasoned decisions, prohibiti6ns
against ex parte secret influences or open reliance upon secret evidence,
and the availability of experienced counsel to all litigants, among others.
Perhaps the most fundamental problems are: (1) the extent to which the
administrative process may and should depart from judicial procedure
without incurring too great a loss in public confidence, and (2)
determinations as to which matters are, and which are not, suited for the
232. But cf. Cole, Administrative Agencies and judicial Powers, 44 A.BAJ. 953, 1004-06
Adams v. De Yoe .............. 174 * Adamski v. State ................ 855 Aetna Ins . Co. v. The Satrustequi .. 509 Afran Transp . Co. v. National Maritime Union .............. 298 Alder v . Tully & Di Napoli , Inc. 786 Alianza Co . v. Bell .............. 444 Alloy ........................ 765 , 770 American Can Co. v. Russellville Canning Co . .................. 146 American Crystal Sugar Co . v. Cuban-American Sugar Co........ 151 American Ins . Co. v. Canter ...... 351 American Mut . Liab. Ins. Co. v.
M atthews ..................... 792 American Stevedores Inc . v. Porello 792 , 797 Amerotron Corp., Matter of ...... 804 * Ando v. Woodberry .............. 369 Armit v . Loveland ............... 305 Arthur v . Compagnie Gen. Transatlantique ..................... 310 Ash v . Mortensen .............. 173 Ashcraft v . Tennessee.. 102 , 103 , 110 , 113 Automatic Canteen v. FTC ...... 146 Baird v. Commissioner .......... 558 Baldwin v . Missouri ............ 246 * Baltimore & O.R.R. v. United R.R. Wkrs ., TWU ............ 849 *Barenblatt v . United States 273 , 275 , 282 , 286 , 523 360 Barr v. Matteo ..................
Bartholomew v. Universe Tankships , Inc. .................... 304 Bauer v . Acheson ............ 517 , 818 Beilan v. Board of Educ....... 250 , 529 Bell v. United States ............ 154 Benway v . City of Watertown .... 319 Benz v. Compania Naviera Hidalgo, S.A. .......................... 298 * Biener Contracting Corp. v. Elberon Restaurant Corp ............... 384 Board of Comm'rs v . Backus .... 400 Bohm v. L.R.S. & B. Realty Co... 329 Bonetti v . Rogers ................ 268 Boyd v . United States ............ 531 Brackett v . Woodall Food Prods., Inc .......................... 222 Brady v . Stanley Weiss & Sons .... 799 Breen v. Peck ................... 174 Brennan v . Hockensmith Constr.
Co . ........................... 336 Bridges v . California ............ 242 Broderick v . Liebmann Breweries , Inc. .......................... 330 Brooks v . NLRB ............... 767 Brooks v . Owens ................ 225 Brown v. Allen ................ 247 Brown v . Maryland .. 343 , 345 , 347 , 493 California Copper Syndicate v.
Harris ........................ 436 Campbell v . Prothro ............ 603 Campbell Coal .................. 758 Campo v . Scofield .... 777-78 , 780 , 781 Carbon Black Export , Inc. v. The S.S. Monrosa .................. 312 Cardinal v . State ................ 797 Cerro de Pasco Copper Corp. v.
Knut Knutsen , O.A.S............ 507 Certain German Interests in Polish Upper Silesia ................. 206 Chemical Carriers , Inc. v. L. Smit & Co.'s Internationale Sieepdienst 509 , 511 Chisholm v. Georgia ..............
City of Rochester v. Montgomery Coffey v. Flower City Carting & Excavating Co ................. 799 Cole v . Young ................ 258 , 284 * Coleman v. Newark Morning Ledger Co . ........................... 363 Collins v . Firth-Brearley Stainless Steel Syndicate , Ltd ............ 436 * Commissioner v. Hansen ........ 556 Commissioner v . Stern .... 388 , 389 , 390 Commissioners of Inland Rev. v.
Blort ......................... 445 Commissioners of Inland Rev . v.
Coke ......................... 446 Commissioners of Inland Rev . v.
Reinhold .................. 437 , 438 Commissioners of Inland Rev. v.
Toll Property Co............... 443 Commissioners of Inland Rev . v.
Wright ........................ 446 Connelly v . Hunt Furniture Co . 324 , 338 , 339 Continental Cas . Co. v. Clarence L.
Boyd Co . .................... 291 Conway's Express ................ 761 Corsall v . Gover ......... 463 , 469 , 478 Cramer v. Sunshine Biscuits , Inc. 333 Crepps v. Durden ................ 153 Crowell v . Benson .............. 31 *Crown Kosher Super Market, Inc . v.
Gallagher ..................... 826 Curtis Bros................. 765 , 769 * Daily v. Somberg ................
East Meadow Sanitation Serv . Inc., In re ......................... 805 Ebasco ......................... 759 Elizabeth Arden Inc . v. FTC ..... 145 Erie R.R . v. Tompkins .... 390 , 553 , 555 Fairmount Glass Works v. Cub Fork Coal Co ....................... 505 Falk v . Crystal Hall ............ 786 Federazione Italiana dei Consorzi Agrari v . Mandask Compania de Vapores, S.A .................. 304 *Federowicz v . Potomac Ins. Co. .. 375 Feres v. United States .......... 317 Forman v . Bostwick ............ 472 Fox v . Western New York Motor Lines ......................... 799 * Frank v. Maryland .............. 529 Furtado v . American Export Airlines ...................... 329 , 333 Gaites v. Society for the Prevehtion of Cruelty to Children ..........
Gallimore v. Dye ................ 226 Garner v . Board of Pub. Works .. 250 Garner v. Teamsters Union 739 , 740 , 747 General Am. Tank Car Corp. v. El Dorado Terminal Co ........... 547 General Mills , Inc. v. Goldman ... 167 Gerradin v. United Fruit Co ....... 310 *Gibran v. National Comm. of Gibran ........................... 159 Gilbert v . Minnesota ............ 277 * Gillespie v. Hynes ............... 548 Givner v . State .................. 531 Goheen v . Goheen ............... 220 Gordon v . United States .......... 256 Green v. Geiger ................. 328 Green v . United States 837-38 , 839 , 840 * Grein v. La Poma .............. 852 Greyhound Lines v. Mealey ..... . 496 Grisham v . Hagan ............ 820 , 825 Guss v. Utah Labor Relations Bd . 740 -42 Hadley v. Baxendale ............
842 Hanson v. Denckla .............. 358 Harrison v . Sterry .............. 423 Hartford Acc . & Indem . Co. v.
Delta & Pine Land Co ....... 356 , 358 Helvering v. Horst .............. 604 Hennington v . Georgia .......... 827 Hickman v . Taylor .............. 219 Hoopeston Canning Co . v. Cullen 358 Hooven & Allison Co. v. Evatt 345 , 349 Horn v. Pals & Solow ............ 337 Hudson's Bay Co . v. Stevens .... 442 Humes v. United States .......... 611 Inman v . Binghamton Housing Authority ............. 778 , 780 , 781 Insular Cases .................... 822 Jeffreyes v . Sager Co .... 324 , 325 , 340 Jencks v. United States ........ 256 , 257 Jeppesen v. Swanson ............ 224 Jewell Ridge Coal Corp . v. Local 6167, UMW ................... 244 Johnson v . Gristede Bros......... 337 Jorgensen v . Standard Oil Co .... 310 Kayser v. Erie County Highway Dep't . ........................ 326 Kent v . Dulles ............ 281 , 818 - 19 *Kinsella. v. United States ex rel.
Singleton ...................... 820 *Kirkhof Elec . Co. v. Wolverine Express, Inc . .................... 840 Korematsu v . United States ...... 254 Kremen v. United States ........ 259 Laddon v . Superior Court ...... 227 , 232 * Ladner v. United States .......... 152 Landby v . New York, N.H. & H.R.R . ....................... 319 Lauritzen v . Larsen 311 , 312 , 354 ,' 355 , 357 Lawrence v. Devonshire Fabrics, Inc .......................... 806 -07 Layton v. Cregan & Mallory Co. .. 220 Lerner v. Casey .............. 250 , 539 Lerner v. Rump ........ 325 , 330 , 336 Lesnick v. National Carloading Corp ................. 332 , 340 , 342 * Levine v. Bornstein .............. 537 Liechtenstein v . Guatemala ...... 689 Losinger & Co ................... 208 Louette v . State ................ 101 Low v . Austin ................ 344 , 348 Lugay Frocks, Inc. v. joint Bd.
Dressmakers' Union ............ 805 McClure v . Boeger ..............
Guagliardo ................ 820 , 825 McFall v. Compagnie Maritime Belge ......................... 787 McGee v . The Int'l Life Ins. Co . 358 , 554 McGoldrick v . Berwind-White Coal 222 329 Mining Co. ................... 493 McGrath v . Vaccaro ............. 221 *McKee v . Sheraton-Russell, Inc. .. 559 McNabb v . United States ........ 372 MacPherson v . Buick Motor Co . 776 -77 Maddox v. Grauman ............ 224 Mainfort v . Giannestras .......... 173 Malinski v . New York ........... 110 Mallory v. United States 372 , 373 , 407 Mandoli v. Acheson .............. 730 Marbury v . Madison ............ 818 Marine Cooks & Stewards Union v.
Panama S.S. Co............... 299 Markakis v . Mparmpa Christos 303 , 304 Martin v. Lowry ................ 438 Masciale v . United States .... 413 , 414 Massachusetts Bonding & Ins. Co. v.
United States ................. 291 Masse v . Robinson Co . 330 , 332 , 334 , 337 Matter of Palmer v. Pierce ...... 802 Matter of Wrap-Vertiser Corp . 803 , 804 May v. New Orleans ............ 345 Meacham Corp . v. United States .. 301 Meltzer v. Temple Estates ...... 787 Memphis Natural Gas Co. v. Beeler 497 , 498 Merriweather v. Boland & Cornelius 794 Michael , In re .................. 542 Middleton v . City of New York .. 799 Miller v. Maryland Cas. Co .... 504 Milligan , ex parte .......... 821 , 822 Missouri - Kansas - Texas R.R . v.
Brotherhood of Locomotive Eng'r 851 Moch Co . v. Rensselaer Water Co. 321 Monteiro v. San Nicolas, S.A ..... 304 Moore Dry Dock Co........... 757 - 60 *Munn v. National Fire Ins. Co .... 846 Murrain v. Wilson Line .......... 318 * Nash-Ringel , Inc. v. Amana Refrigeration, Inc................. 553 National Sur . Co. v. United States ex rel . Pittsburgh & Buffalo Co . 289 , 290 *Nestor v. Folsom .... 359 , 512 , 514 , 516 Ng Fung Ho v. White ............ 31 Nielson v . Michael Stern & Co... 340 NLRB v. Denver Bldg. Trades Council ....................... 757 NLRB v . International Rice Milling Co . .......................... 754 NLRB v . Rockaway News Co... 762 NLRB v. United Rubber, Local 511 , AFL-CIO ..................... 770 No. 236 v. Minister of Nat'l Rev. 443 No. 257 v. Minister of Nat'l Rev. 443 Northwestern States Portland Cement Co. v. Minnesota ...... 497, 499 Nottebohm Case ...... 689-702 , 735 , 736 Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola ..
322 Raabe v. Squier ................. 386 Railway Express Agency , Inc. v.
Virginia ................... 496 , 499 Randall v. Bailey ................ 663 Raping v . Great At. & Pac. Tea Co. 787 Read v. United States ............ 793 Recamier Mfg . Co. v. Seymour .. 833 Rederiaktiebolaget Amphitrite v.
The King ..................... 203 Reichard v . H. H. Franklin Mfg.
Co . ........................... 340 Reid v . Covert .................. 822 Rex v . Wright .................. 366 Richards v . City of Columbia .... 532 Richardson v. Greenberg .... 324 , 338 Richardson Press v. Albright .... 386 Robbins v. Enterprise Oil Co .... 336 Robertson v. Minister of Pensions 203 Roder v. Northern Maytag Co. .. 563 Rodriguez v. Gerontas Co .......... 304 Roembke v . Wisdom ............ 226 Rogers v . Patokoski ............ 734 *Romero v . International Terminal Operating Co. .. 299 , 311 , 312 , 350 , 511 Ross, In re .................... 822 Rothman & Schneider v, Beckerman 833 , 835 Royal Typewriter ............... 760 The Rudolph Wurlitzer Co ....... 750 -51 Rueff v. Brownell ................ 729 Rufo v . Orlando ................. 789 Runkel v . City of New York .... 319 Ruppert v. Egelhofer .......... 812 -13 Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp................ 793 San Diego Bldg. Trades Council v.
Garmon ...................... 740 Sand Door .................. 761 , 763 Scarborough v. Atlantic Coast Line R.R . .......................... 564 Schactman v . Dulles ............. 817 Schlesinger v . Quinto ............ 814 Schuster v . City of New York .... 316 Schwalenstocker v. Department of Taxation & Finance ........ 337 , 338 Schware v. Board of Examiners .. 248 Schwartz v. Merola Bros. Constr.
Corp. ......................... 786 Scott v. Sandford ................ 239 Sebring v . Starner ............... 478 *SEC v. Variable Annuity Life Ins .
Co . ........................... 379 Semanchuck v . Fifth Ave. & ThirtySeventh St. Corp........... 789 , 790 Sexton v. California ............. 276 Sherman v . United States .... 409 , 411 , 412 , 413 Silverman v. Sunrise Pictures Corp . 160 , 161 *Simplicity Pattern Co. v. FTC .. 144 Slattery v. Marra Bros............ 793 Slavin v . State .................. 319 Slochower v . Board of Educ .... 262 Snow , In re ..................... 153 Society for Say. v. Bowers ....... 828 Sonnesen v . Panama Transp. Co. .. 310 Sorrells v. United States .. 399 , 409 , 411 Southern Pac . Co. v. Jensen .... 353 Southern Ry . v. Tift ............. 546 Spector Motor Service , Inc. v.
O'Connor .................. 495 , 498 Spellacy v. American Life Ins. Ass'n 382 Spring City Foundry Co. v. Commissioner .................. 557 , 559 St. Paul-Mercury Indem. Co. v.
Chamberlain .............. 497 , 498 Union Paving Co. v. Thomas .... 796 Ex rel . United Commercial Travelers v. Wolfe ................ 357 United Gas Co. v. Mobile Gas Corp ....................... 157 , 158 *United Gas Pipe Line Co. v. Memphis Light, Gas & Water Div. .. 156 United States v. Ambursen Dam Co. 289 United States v. Andolschek ...... 256 United States v. Appel ........ 541 , 542 * United States v. Bethlehem Steel Corp. ......................... 147 United States v. Columbia Steel Co ........................ 148 , 150 United States v. du Pont & Co. 148 , 149 United States v. Lovett .......... 517 United States v . Pay-O-Matic Corp. ......................... 389 United States v. Rabinowitz ...... 532 United States v . Rothchild Int'l Stevedoring Co ................ 793 United States v. Roviaro ......... 406 United States v. Rumley ........ 525 United States v. Silva ............ 401 United States v. Spector .......... 519 United States v. St. Pierre ........ 261 United States v . Ullmann .... 249 , 250 United States v. Universal Credit Corp ....................... 153 , 155 United States v. Western Pac. R.R. 547 United States v. Witkovich 266 , 267 , 282 United States ex rel. Flegenheimer v.
Italy .................. 689 , 702 - 736 United States ex rel. J. P. Byrne & Co. v. Fire Ass'n .............. 292 United States ex rel . Purity Paint Corp . v. Aetna Cas. & Sur. Co... 290 United States ex rel. Volpe v. Smith 268 United States Fid. & Guar . Co. v.
Virginia Eng'r Co........... 796 , 798 United States Glue Co. v. Town of Oak Creek ................ 496 , 498 United States Nav. Co. v. Cunard S.S. Co ........................ 547 United States Plywood Corp . v.
City of Algoma ................ 346 Uphaus v . Wyman ............ 275 , 528 Uravic v. F. Jarka Co............ 309 Verrastro v . Grecco ............ 227 Village of Port Jervis v. First Nat'l Bank ..................... 783 , 784 Walters v. Rao Elec. Equip. Co . 789 , 790 Washington Coca Cola ........ 757 - 59 *In re Washington Square Slum Clearance ..................... 388 Wason v . Walter ................. 366 Watkins v . United States .. 251 , 254 , 268 , 269 , 270 , 271 , 272 , 273 , 282 , 284 , 522 , 525 , 527 , 620 Watson v. Employer's Liab. Assur.
Corp ................ 231 , 357 , 358 Weber v. Anheuser-Busch, Inc .... 739 West Publishing Co. v. McColgan 497 , 498 *West View Hills Inc. v. Lizau Realty Corp. ......................... 831 Westchester Lighting Co. v. Westchester County Small Estates Corp . ......................... 795 Western Union Tel. Co. v. American Communications Ass'n ......... 811 Western Wine & Liquor Co. v.
Commissioner .................. 447 White v . Rintoul ........ 385 , 386 , 387 William H. Muller & Co. v. Swedish Am. Line , Ltd.... 506 , 509 , 510 , 511 Wilson v. Bohlender .......... 820 , 825 Winterbottom v. Wright .......... 776 Wischnie v . Dorsch .............. 790 Wise v . Jerome ................. 551 Wolf v . Colorado ......... 529 , 530 , 533 Wong Wing v. United States .. 519 , 520 * Worthy v. Herter ................ 816 182 . Radio Officers' Union v . NLRB , 347 U.S. 17 , 48 - 50 ( 1954 ) ; Universal Camera Corp . v. NLRB , 340 U.S. 474 ( 1951 ); Cardillo v . Liberty Mut. Ins . Co., 330 U.S. 469 , 477 - 78 ( 1947 ).
183. See , e.g., Burton-Dixie Corp . v. FTC , 240 F.2d 166 ( 7th Cir . 1957 ); Friend v.
Britton , 220 F. 2d 820 (D.C. Cir .), cert. denied, 350 U.S. 836 ( 1955 ) ; Victor Prods . Corp. v.
NLRB , 208 F. 2d 834 (D.C. Cir . 1953 ); Farmers Co-op . Co. v. NLRB , 208 F.2d 296 ( 8th Cir . 1953 ); Robinson v . Bradshaw , 206 F. 2d 435 (D.C. Cir .), cert. denied, 346 U.S. 899 ( 1953 ). See notes 193 and 197 infra.
184. See note 44 supra. Here review, if Congress so orders, may be very restricted .
See , e.g., Work v. United States ex rel . Rives , 267 U.S. 175 ( 1925 ).
185. See note 44 supra.
186. See note 46 supra.
187. See notes 52-57 supra.
188. In Estep v. United States , 327 U.S. 114 , 122 ( 1946 ), the Court limited review to a determination of whether there was "no basis in fact" for the Board's findings of fact.
Cf . Cox v. United States , 332 U.S. 442 ( 1947 ). Later decisions as to what is a "basis in fact" make it difficult to distinguish this test from the substantial evidence rule, unless perhaps it is sufficient if there be any substantial evidence at all in the record to support the findings, without considering the effect of the opposing evidence in the whole record .
Witmer v . United States , 348 U.S. 375 ( 1955 ); Dickinson v . United States , 346 U.S. 389 ( 1953 ). See 4 Davis, Treatise § 29 .07. Since review may be made by habeas corpus here, Eagles v. United States ex rel . Samuels , 329 U.S. 304 ( 1946 ), the Court may have tried to limit the scope of review to that of habeas corpus. But, in fact, except for review of a military court martial the scope of review on habeas corpus is almost as broad as the substantial evidence rule . Cf . Wiggins v. United States , 261 F.2d 113 , 114 - 15 ( 5th Cir .
1958 ), cert. denied, 27 U.S.L. Week 3259 (U .S. Mar. 23 , 1959 ) ; Pate v . United States , 243 F.2d 99 ( 5th Cir . 1957 ); Capehart v . United States , 237 F.2d 388 ( 4th Cir . 1956 ), cert.
denied , 352 U.S. 971 ( 1957 ) ; Olvera v . United States , 223 F.2d 880 ( 5th Cir . 1955 ) ; Rowell v . United States , 223 F.2d 863 ( 5th Cir . 1955 ) ; United States v . Ransom , 223 F.2d 15 ( 7th Cir . 1955 ) ; Weaver v . United States , 210 F.2d 815 ( 8th Cir . 1954 ) ; Jewell v . United States , 208 F.2d 770 , 771 ( 6th Cir . 1953 ); United States v . Pekarski , 207 F.2d 930 , 931 (2d Cir.
1953 ); Bejelis v . United States , 206 F.2d 354 ( 6th Cir . 1953 ). See 3 Davis, Treatise § 23 .08; Note, 56 Colum. L. Rev. 551 ( 1956 ); notes 143, 146 supra.
190. Cooper , Administrative Law: the Substantial Evidence' Rule, 44 A.B.A.J . 945 ( 19S8 ).
191. Ia . at 948.
192. Ibid .
193. See Jaffe , Judicial Review: Substantial Evidence Upon the Whole Record , 64 Harv. L. Rev. 1233 , 1251 - 55 ( 1951 ), criticizing the decision of the Sixth Circuit in Pittsburg S.S . Co. v. NLRB , 180 F.2d 73 ( 6th Cir . 1950 ), aff'd, 340 U.S. 498 ( 1951 ). Cf.
NLRB v. Pool Mfg . Co., 339 U.S. 577 ( 1950 ) ; NLRB v. Mexia Textile Mills, Inc ., 339 U.S. 563 ( 1950 ) ; NLRB v. Waterman S.S. Corp ., 309 U.S. 206 ( 1940 ).
194. Cooper , supra note 190, at 946-47.
195. Id . at 948-49, 1001 .
196. Id . at 949.
197. Cf . NLRB v. West Point Mfg. Co., 245 F.2d 783 ( 5th Cir . 1957 ) ; American Brake Shoe Co . v. NLRB , 244 F.2d 489 ( 7th Cir . 1957 ) ; NLRB v . Raymond Pearson , Inc., 243 F.2d 456 ( 5th Cir . 1957 ) ; NLRB v . Coats & Clark , Inc., 231 F.2d 567 , 572 ( 5th Cir . 1956 ).
See notes 183 , 193 supra.
198. Cooper , supra note 190, at 949.
199. NLRB v. Truitt Mfg . Co., 351 U.S. 149 ( 1956 ) ; Radio Officers' Union v . NLRB , 347 U.S. 17 ( 1954 ) ; FTC v. Motion Picture Advertising Service Co ., 344 U.S. 392 ( 1953 ) ; NLRB v. Seven-Up Bottling Co ., 344 U.S. 344 ( 1953 ). Cf. NLRB v. Babcock & Wilcox Co., 351 U.S. 105 ( 1956 ).
200. Cooper , supra note 190, at 1001.
201. The test dates from at least 1913 . ICC v . Lousiville & N.R.R. , 227 U.S. 88 , 94 ( 1913 ) (statute silent as to any test at all) . Cf. 38 Stat . 720 ( 1914 ), 15 U.S.C. § 45 ( 1952 ) (FTC).
221. FTC v. Cement Institute , 333 U.S. 683 , 726 ( 1948 ) ; American Light & Power Co . v.
SEC , 329 U.S. 90 , 112 ( 1946 ) ; Franks Bros . Co. v. NLRB , 321 U.S. 702 , 704 - 05 ( 1944 ) ; Northwestern Elec . Co. v. FPC , 321 U.S. 119 , 124 ( 1944 ) ; Federal Security Adm'r v . Quaker Oats Co. , 318 U.S. 218 , 227 - 29 ( 1943 ) ; Phelps Dodge Corp . v. NLRB , 313 U.S.
177 ( 1941 ) ; Magnolia Liquor Co . v. Black, 252 F.2d 405 ( 5th Cir . 1958 ); Walker v.
CAB , 251 F.2d 954 ( 2d Cir . 1958 ).
222. NLRB v. District 50, UMW , 355 U.S. 453 ( 1958 ) ; Jacob Siegel Co . v. FTC , 327 U.S. 608 , 611 ( 1946 ) ; NLRB v . Express Publishing Co., 312 U.S. 426 ( 1941 ); FTC v.
Royal Milling Co ., 288 U.S. 212 , 218 ( 1933 ); Alberty v . FTC , 182 F.2d 36 , 40 (D.C. Cir .
1950 ), cert. denied, 340 U.S. 818 ( 1951 ).
223. Office Employees v . NLRB , 353 U.S. 313 ( 1957 ) ; NLRB v . Highland Park Mfg.
Co., 341 U.S. 322 ( 1951 ) ; Packard Motor Car Co . v. NLRB , 330 U.S. 485 ( 1947 ).
224. Cf . Gray v. Powell , 314 U.S. 402 ( 1941 ). There are cases giving agencies much discretion on broad questions. See Brooks v . NLRB , 348 U.S. 96 ( 1954 ) ; NLRB v. Seven-Up Bottling Co ., 344 U.S. 344 ( 1953 ) ; Colorado Interstate Gas Co . v. FPC , 324 U.S. 581 ( 1945 ).
225. FCC v. RCA Communications , Inc., 346 U.S. 86 ( 1953 ).
226. NLRB v. Hearst Publications , Inc., 322 U.S. 111 ( 1944 ). Cf. NLRB v. Truitt Mfg.
Co., 351 U.S. 149 ( 1956 ) (Board may determine whether facts show lack of good faith in bargaining; the Court decided that refusal to produce records to prove inability to raise wages may be used to show bad faith).
227. See Commissioner v. Flowers , 326 U.S. 465 , 469 ( 1946 ); Helvering v . Winmill , 305 U.S. 79 , 83 ( 1938 ). But cf . Social Security Bd. v. Nierotko , 327 U.S. 358 ( 1946 ) ; Koshland v . Helvering , 298 U.S. 441 ( 1936 ).