Williams, Jerre S.

English

Penn Law: Legal Scholarship Repository

DEAN JAMES 0. FREEDMAN:A PERSONAL TRIBUTEJERRE S. WILLIAMS tIn the late fall of 1967, I began the agreeable task of organizingthe permanent Administrative Conference of the United States.'The Conference was created to make recommendations for the im-provement of administrative procedures and processes throughoutthe executive branch of the federal government. It was essentialthat the recommendations developed grow on a solid foundation ofscholarly yet pragmatic analysis of problems in the administrativeprocess and solutions to those problems. One of the first persons Ihired as a consultant to the Conference to do the kind of thoroughand effective research and evaluation which was needed was James0. Freedman, then Associate Professor of Law at the University ofPennsylvania. He was then about thirty-three years old, but he hadalready built a solid reputation among administrative lawyers andscholars. There has been an exceptional synergetic relationshipbetween Dean Freedman and the Administrative Conference eversince. I think particularly of his study of summary administrativeaction which grew out of research he undertook as consultant tothe Administrative Conference and which occupies four effectivechapters of his book, Crisis and Legitimacy.2Because I have known Dean Freedman largely through his ex-ceptionally thorough work in administrative law, I should focusthese few words upon his contributions to the knowledge, under-standing, and improvement of the administrative process. But nopersonal tribute can be complete without referring to his talentsas Dean of the Law School, University Ombudsman, and particu-larly to the rewarding cordiality and sympathetic understandingwhich have exemplified his personal relationships with other people.James Freedman is a warm and friendly person. Because of this,the effectiveness of his keen and creative intelligence is markedlyenhanced. All facets of his remarkable career prove this to be so.f Circuit Judge, United States Court of Appeals for the Fifth Circuit. A.B.1938, University of Denver; LL.B. 1941, Columbia University.15 U.S.C. §§ 571-576 (1976).2J. F.nmoAN, CRISIS AND LEGITmACY: Tna ADrn~iwsTRATrvE PRocEss ANIDAmmcAx GovEmmENT 207-55 (1978).(280)JAMES 0. FREEDMANA particular way to recognize Dean Freedman's personal quali-ties is found in his service as University Ombudsman for aboutthree years in the middle 1970's. He was ideal for this position.The original development of the Ombudsman concept called forsomeone who would be a careful, knowledgeable, intelligent, andhighly respected person who immediately commanded the trust ofthe people and never failed that trust. Freedman fit this mold withprecision. Although further development of the Ombudsman con-cept is certainly desirable, those who have evaluated it recognize thatthe Ombudsman tends to lose the attributes which are so importantto the office when the task becomes so large that those personalqualities are lost in what becomes the creation of another govern-ment bureau. When that burgeoning development takes place, wethen have the same issues of crisis and legitimacy in the office ofthe Ombudsman that we have elsewhere in the administrativeprocess. But at the level that Dean Freedman operated as Ombuds-man, his personal qualities shone, and the total trust was there.And now back to Freedman and Administrative Process. Noone has better described the constant turmoil in administrative lawthan Freedman did in his words, "crisis" and "legitimacy." Hegives us, in the conclusion of his book, the challenge of developing"an effective theory of the legitimacy of the administrative process"by candidly facing the "recurrent sense of crisis" to guide us toeffective procedures which will "give promise of being fair, efficient,and responsive to democratic values and constitutional restraints." sThis is a beautifully and succinctly stated goal. But if I under-stand the pragmatic side of Jim Freedman, he knows, as I know,that the goal will never be wholly achieved. I can never envisagea day when there will be no crisis and no doubts as to legitimacywith respect to administrative processes. And I am sure he doesnot either..New challenges will create new needs and new needs in turnwill demand new administrative processes. Today we hear muchof "deregulation," which constitutes no more than a substantivegoal of withdrawing from regulation certain aspects of our societywhich have been regulated in the past. Deregulation is not theabolition of administrative process where administrative process isneeded. Anyone who knows the breadth and range of an accuratedefinition of administrative process knows there is no way the ad-ministrative process can be eliminated in government.3 Id. 266.1981]282 UNIVERSITY OF PENNSYLVANIA LAW REVIEWWe shall always continue to be faced, then, with the issues ofwhat should be regulated and how should we do it. There is noconceivable way that the search for methods of regulation can elimi-nate administrative process as we know it. In fact, one of the en-couraging developments of the later years in the administrative lawfield has been the development of regularized and effective admin-istrative procedures in the various states. As we undertake anational goal of trying to return more government to the states,we stimulate, at the same time, more use of administrative processin the states.I think the passage I like best in Freedman's book refers to thedesirability of developing in the administrative process "an exper-tise in the art of skepticism about expertise, a competence in theworldly art of the politically acceptable and socially wise." 4 Hethen goes on to say that this is the kind of expertise that shouldbe sought in those who are named to positions of responsibility inthe administrative process. This is a key observation. Those whoare sophisticated in the administrative process know that the workof the administrator is not the technical responsibility of being ableto follow precisely a mandate that has emanated from highersources. Quite the contrary, the administrative process is inescap-ably a policymaking process, and we need exactly the kind ofpolicymakers that Dean Freedman describes in these penetratingwords.Legislative bodies sometimes abdicate their responsibilities forpolicymaking to administrative bodies. Even if they do not abdi-cate, the practical answer is that there is no way in the complexitiesof today's world for the legislative bodies to deal with all the policyissues that demand attention. In many instances, legislatures canonly set up guideposts of varying effectiveness and leave imple-mentation and precise regulation to others. To the wistful andsincere cries that this sounds undemocratic and authoritarian, itcan only be replied that there is no way the government can governwithout it, no matter how much it genuinely desires to, and suc-ceed at the same time in implementing human freedom. My ex-cessive freedom is someone else's oppression. Only government cankeep the balance true.Keeping the balance true calls for experts in "the worldly artof the politically acceptable and socially wise" who are skeptical ofthose who are arrogantly sure that because of their own training4 Id. 54.[VoI. 130:259JAMES 0. FREEDMANand background, they know the only true way to resolve a socialproblem.Finally, I offer a personal word which is also related to JamesFreedman and his work. For many years as a fulltime teacher oflaw, I taught the administrative process. I now find myself anappellate judge, often called upon to evaluate that process throughjudicial review. I believe that I see the administrative processtoday very much as I saw it earlier when I was teaching it andcriticizing the courts for what they did. Obviously, there are somechanges in my attitude. But I thumbed through Dean Freedman'sreferences in his book. Almost all the administrative law he citesis either rules or court decisions. Very few administrative decisionsare cited. This is not unusual; it is par for the course.What it does show is that judicial review has a great deal todo with legitimating the administrative process. Only a small per-centage of reviewable administrative decisions ever reach the courts,yet the fact that the possibility of review exists is an integral aspectof the quality of the administrative process. I believed it before,but my belief has been reinforced. There are two messages. Thefirst is that nothing about the importance of judicial review shouldturn us away from trying to achieve the best possible results atthe administrative level. But second, as we turn more and moreattention to informal and summary administrative action wherejudicial review as a practical matter is difficult or impossible, weneed to develop more fully analogous methods of review withinthe process itself. These methods must command public knowledgeand respect.James Freedman knows all of these things. We can be con-fident that he will continue his outstanding creative contributionsto the administrative process and to the broader demand of recon-ciling the essential legal controls of a society with human liberty.I am honored to have worked with him and to call him my friend.1981]

Dean James O. Freedman: A Personal Tribute

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Dean James O. Freedman: A Personal Tribute

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