Weidhaas, G. Hugo

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ADMINISTRATIVE AGENCIES AND THE COURTS. By Frank E. Cooper. Michigan Legal Studies. Ann Arbor: University of Michigan Law School, 1951.

University of Miami School of Law

University of Miami Law Review Volume 6 Number 3 Article 19 4-1-1952 ADMINISTRATIVE AGENCIES AND THE COURTS. By Frank E. Cooper. Michigan Legal Studies. Ann Arbor: University of Michigan Law School, 1951. G. Hugo Weidhaas Follow this and additional works at: https://repository.law.miami.edu/umlr Recommended Citation G. Hugo Weidhaas, ADMINISTRATIVE AGENCIES AND THE COURTS. By Frank E. Cooper. Michigan Legal Studies. Ann Arbor: University of Michigan Law School, 1951., 6 U. Miami L. Rev. 514 (1952) Available at: https://repository.law.miami.edu/umlr/vol6/iss3/19 This Book Review is brought to you for free and open access by the Journals at University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact library@law.miami.edu. BOOK REVIEWSADMINISTRATIVE AGENCIES AND THE COURTS. By Frank E. Cooper. MichiganLegal Studies. Ann Arbor: University of Michigan Law School, 1951.Pp. 470. $5.00.The importance of the administrative law field has become more andmore recognizable in the United States. The creation and expansion ofnew governmental agencies, the restrictions and new revenue measures andthe enormous number of regulations to be followed by the administrativeagencies have necessitated a number of authors to assemble materials neces-sary to clarify this comparatively new field. Consequently, it is not surprisingthat the editor of Michigan Legal Studies has added to his list of renownedbooks the one of Professor Cooper, a member of the Detroit Bar andVisiting Professor of Law at the University of Michigan, on the subject ofadministrative agencies.The book under review, Administrative Agencies and the Courts, is amodem approach to the subject matter. In it the author attempts todescribe the standards which the courts impose upon administrative agen-cies, whereby they control and limit the powers of the agencies. The 470pages have been divided into five parts with the Administrative ProcedureAct' serving as the final guide.Part one has been set out as the Place of Administrative Agencies inthe Judicial System. Mr. Cooper defines administrative law and gives thereader an insight into the historical background of this branch of law. Themost recent changes in the administrative law field came after 1932 whenmany new federal agencies exercising important regulatory functions cameinto being.2 The author states that many administrative agencies serveprimarily the function of accomplishing what ordinary legal remedies cannotnormally achieve; in other words, by the particular regulation the party canbe protected or preventative measures can be asserted prior to harm beingdone. This particular phase is dwelt upon, giving first-hand information asto the individual functions of the specific agency. Cooper feels that thetask of the lawyer in conducting cases before administrative agencies is adifficult one. As an example he cites the fact that when the lawyer issearching for the law concerning administrative procedure he finds himselfinvolved in the process of sifting the information from the numerous head-ings in the law digests and encyclopedias. Consequently, much time is spent1. 60 STAT. 237, 5 U.S.C. § 1001 (1946).2. E.g., Securities and Exchange Commission, National Labor Relations Board, Wageand Hour Division of the Department of Labor, Social Security Board, Bituminous CoalDivision.BOOK REVIEWSin the preparation of cases in only seeking previous court decisions. Theattorney will find that there is quite a difference between administrativeand judicial proceedings. One must bear in mind that the attorney's roleis more difficult in that the opponent is quite frequently the administrativeagency itself; whereas, in judicial proceedings, the practitioner is not asmuch concerned with whom his adversary might be.The second part of this book concerns itself with the Underlying Con-stitutional Question: effect of separation of powers doctrine on delegationto administrative agencies of legislative and judicial powers. The authorwrites that administrative agencies are permitted to exercise powers whichlogically belong to the courts or to the legislature, so long as the independ-ence of the courts or of the legislature is not impaired. Many of the agencyproblems are discussed, such as the delegation of powers by an agency toits employees. It is pointed out that in the decision of a case wherein anagency employee is delegated to use his discretion, he, the employee, willoften make such a determination as he thinks will please his employer, inthe hope of obtaining a promotion. By the same token, if the employee isimpressed with a belief that the agency likes decisions which find anemployer guilty of unfair labor practices, or a commercial concern guiltyof unfair trade practices, or an employee entitled to receive workmen'scompensation, then much consideration and thought has to be given tothese matters to avoid the same problem of pleasing the officials, who willpass upon the employee's personal advancement. However, the FederalAdministrative Procedure Act goes far toward alleviating this problem inmany of the federal agencies. 3 Cooper recommends that much might beaccomplished by 1) careful formulation for the guidance of agencyemployees of instructions for the application of those policies which havebeen crystallized; 2) consideration by the agency heads of cases where theapplication of established policies is difficult or where policies have notbeen definitely formulated (with encouragement for the referral by agencyemployees of cases thought to fall within this category); and 3) the require-ment of periodic and informative reports by those employees entrusted withpower to make decisions.At times statutes do not have an affirmative requirement of noticeand hearing. Query: Is the statute void because of such omission? By theclear weight of authority there is no deprivation of due process if noticeand hearing were in fact afforded by the administrative authorities, eventhough the statutes do not specifically require such procedure.Part three has been pegged, Procedure in Adjudication of Cases, Inthis section Cooper delves into the matter of parties and pleading. It mustbe remembered that unlike judges, administrative officers are almost alwaysconcerned with the outcome of the case as parties in interest. Undoubtedly,the decisions will have an effect upon future cases arising on the administra-3. ADMINISTRATIVE PROCEDURE AcT, supra note 1, see § 8a, b.MAMI LAW QUARTERLYtive level, and the aforementioned is probably the main factor in differen-tiating the administrative from the judicial procedure. At times, theadministrative agencies allow an interested party, not connected with thecase, to enter and introduce testimony, cross-examine witnesses, etc., similarto an arnicus curiae's part in judicial proceedings. rhis is a healthy situation,because it tends to make for better informed administrative action, savingmuch time, and eliminating the introduction of extraneous issues. Hedwells at length on the prehcaring conferences and informal procedures,right to a fair trial, presentation of evidence, official notice and the role ofdiscretion.Rule Making is the subject matter of part four. The author beginswith the development of rule making activities and points out that as farback as the first Congress (1790) authorization was given by that body tothe President to promulgate rules and regulations. Emphasis is placed uponthe legal effect of rules, criminal penalties for violation of rules, effect ofreliance on regulations and problems of retroactive application. Thegeneral tests of the validity of the rules or regulations are discussed, as forinstance, conflicts with statutes, non-relationship to statutory purpose andviolation of due process.The last part, part five, is based upon Judicial Review. It is believedby many that the courts should exercise a general superintending controlover the actions of administrative agencies. This has proved to be imprac-tical. The general trend of court decisions (except in cases where a statuteprescribes a broad review) is in the direction of reducing the scope of review.Delay involved in judicial review is a determining factor, e.g., business trans-actions cannot always await the final outcome of lengthy appellateprocedures, and administrative orders might have been changed by the timethe case comes to trial, thus making the questions involved moot beforethe court can pass judgment on the case. Issues of law, jurisdictional factsand constitutional facts are not overlooked. We must recognize the factthat the litigant is required to address his complaint initially to administra-tive tribunals, rather than to the courts. He is further required to exhaustall possibilities for obtaining relief through the agency before appealing tothe courts. The common law and statutory methods of review are consid-ered under the general heading.The reviewer, in reading this book, was rcmindcd of an earlier admin-istrative law casebook which he had the pleasure of using in the classroom,namely that of Dean Stason4 who incidentally wrote the foreword toCooper's book. After having re-read both the textbook and casebook, itappears that Mr. Cooper has very commendably followed to a certain degreethe organizational pattern used by Dean Stason. It is obvious that much4. STASON, CASES AND OTHER MATERIALS ON ADMINISTRATIVE TRIBUNALS (2d ed.1947). For reviews see 33 IowA L. REv. 427 (1948), 96 U. oF PA. L. REv. 923 (1948),26 TExAs L. R.Ev. 250 (1947), 27 TxAs L. REv. 11 (1948).BOOK REVIEWStime has been spent by Cooper in the preparation and assembling of thesematerials, as evidenced by several hundred cases advantageously used toemphasize his opinions. The author has used clear and concise language.He has approached the subject matter from a very practical point of view.In my opinion Mr. Cooper's book would serve a useful purpose in thelibrary of the student, the practitioner and the theorist.G. Huco \VEIDHAAS ATTORNEY AT LAwMEMBER OF THE FLORIDA BARDUE PROCESS OF LAw 1932-1949: THE SUPREME COURT'S USE OF A CONSTI-TUTIONAL TOOL. By Virginia Wood. Baton Rouge: Louisiana StateUniversity Press, 1951. Pp. ix, 436. $6.00.This is a valuable study of the work of the Court in an era in which asubstantial percentage of its work has been concentrated during the pasttwo decades and in which there are fewer than usual signposts in the Con-titution to guide the justices in their deliberations. The principal purposeof Professor Wood in her analysis of the Court's interpretation of thedue process clause is to demonstrate that the "Constitutional Revolution"of 1937 was already well under way five years earlier insofar as this part ofthe Constitution was concerned. Emplo)ing the categories of the freedomsof the First Amendment, socio-economie legislation, criminal proceedings,administrative actions and the tax power, she finds that in each of theseareas the Court had laid down the precedents which enabled it in 1937 andthereafter to build a new structure of values for due process.While it has been generally recognized that the pre-Roosevelt Courtconsiderably extended the scope of the due process clause to the freedomsof the first amendments and the rights of the accused in criminal proceed-ings, this reviewer for one had not fully realized that in the other areas-socio-economie legislation and administrative action (the dividing line herebeing most tenuous)-the great majority of decisions favored the states inthe first four or five years of the period under consideration. Starting withJustice Sutherland's statement in Stephenson v. Binford (1931) that theCourt would not overrule the legislative judgment as to the necessity of agiven economic policy, Professor Wood builds up a line of decisions inwhich the Court displayed willingness to permit a greater degree of economicexperimentation by the states. She states that after 1932 "generally speaking,a majority of the justices . . . had held that our constitutional system doesnot require judicial protection of the free enterprise, laissez-faire system."There are, it is true, few exceptions to this statement but the patternthey seem to form is interesting and has not been noted by Professor Wood,although she has written that they are some of the most momentousdecisions of the 1930's. The exceptions as listed by the author are Carter v.

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ADMINISTRATIVE AGENCIES AND THE COURTS. By Frank E. Cooper. Michigan Legal Studies. Ann Arbor: University of Michigan Law School, 1951.

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