The Place and Function of Judicial Review in the Administrative Process

Fordham Law Review, Dec 1959

By Robert Kramer, Published on 01/01/59

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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: - Article 1 VOLUME XXVIII 1959-60 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 .......... COMMENTS INDEX DIGEST -Federal Preemption 275 Validity of "Lord's Day" Statute Under Guarantee of Fourteenth Amendment 826 CONTRACTS CRIMINAL LAW See Entrapment See Evidence See Privileges 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 EXPROPRIATION See InternationalLaw FOREIGN GOODS VOLUME XXVIII NEGLIGENCE See Admiralty See Indemnity Manufacturers' Liability to Remote Users of Obviously Dangerous Instrumentalities 776 Municipal Liability for Failure to Pro vide Police Protection 316 OFFICERS See Public Officials PATENTS Right to Bring Suit While a Patent Is Withheld Under a Secrecy Order 168 PRACTICE AND PROCEDURE Pre-Trial Discovery of Insurance Cover age and Limits 215 -Rules and Statutes on Discovery 216 -Injured Party's Action Against Wrongdoer's Insurer 218 -Purpose of Discovery 219 PUBLIC OFFICIALS Incompatible Municipal Offices in New York 463 -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 Offices 479 PUBLIC WELFARE Workers Laid Off Due to Labor Dispute Ineligible to Receive Unemployment Compensation 855 PUBLIC WORKS See Contracts RELEASE See Torts REVIEW SALES See Administrative Law Extraterritoriality of a Chattel Security Interest: A Plea for the Bona Fide Purchaser 419 -Lex Loci Contractus 422 -- Situs Theory 423 -Ostensible Ownership Through Posses sion 426 -Extraterritorial Effect of Constructive Notice 427 -Modern Protection of Bona Fide Pur chaser 430 SECURITIES See Insurance SELF-INCRIMINATION See Privileges SOCIAL SECURITY See ConstitutionalLaw STATUTE OF FRAUDS Promise Not Within Statute Where Promisor Is Independently Liable 384 STATUTES TO VC)LIME XXVIII ix 263-66, 275-81 North Carolina N.C. Business Corp. Act Sec. 55-52(c) (1) Sec. 55-52(e) (3) (4) North Dakota N.D. Rev. Code Sec. 29-21121 Ohio Ohio Rev. Code Ann. Sec. 4141.29 Sec. 4141.01 Texas 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. 803, 808 238 213 142 833 783 ways .......................... 171 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, 531, 532 Corp. 786 352 784 339 165 FORDIJAM LAW Walkowicz v. Whitney's Inc........ Yates v. United States .. 263, 264, 265, 266, 279, 282, 284, 621 Youngstown Sheet & Tube Co. v. Bowers .................... 346, 348 PROFESSOR ARTHUR A. McGIVNEY ARTHUR 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 services. 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 1959] 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 problem. 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 ( 1953 ); Montana 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) (1952). 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 ( 1953 ); 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 ( 1950 ). 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 (1955). 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 ( 1958 ); 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 (1959). 1959] 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 A. Narrow Tests 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 ( 1958 ); 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 ( 1953 ) ; note 149 supra. 1959] B. Broad Tests 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 1959] 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 dominates it. 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 ( 1953 ); 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 ( 1950 ) ; 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 ( 1953 ). 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 208 result. 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) (1952). 206. Cf. NLRB v. Coca-Cola Bottling Co., 350 U.S. 264 (1956); Howell Chevrolet Co. v. NLRB, 346 U.S. 482 ( 1953 ); O'Leary v. Brown-Pacific-Maxon, Inc., 340 U.S. 504 (1951). 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, 547 (1912). 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 reasonableness. 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 ( 1958 ); 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. 1959] 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 administrative discretion. 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 ( 1953 ); 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 ( 1953 ); 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 ( 1958 ). 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. 1959] 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 reasonably exercised: 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 ( 1958 ); 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 ( 1953 ) (national policy of competition); Henderson v. United States, 339 U.S. 816 ( 1950 ) (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, 411-12 (1941). 218. American Trucking Ass'ns v. United States, 344 U.S. 298, 309 ( 1953 ); NBC v. United States, 319 U.S. 190 (1943); American Tel. & Tel. Co. v. United States, 299 U.S. 232 ( 1953 ) ; 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 ( 1958 ); NLRB v. Seven-Up Bottling Co., 344 U.S. 344 ( 1953 ) ; 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, "em'226 ployees. 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 1959] 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 constitutional principles. 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 ( 1958 ); 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. CONCLUSION 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 administrators. 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 administrative process. 232. But cf. Cole, Administrative Agencies and judicial Powers, 44 A.BAJ. 953, 1004-06 ( 1958 ). 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 ).

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Robert Kramer. The Place and Function of Judicial Review in the Administrative Process, Fordham Law Review, 1959,