Saturday, September 27, 2008

The Special Committee on Administrative Law

[The following is the sixth in a series of posts on Roscoe Pound and the administrative state. The series starts here.]

Louis G. Caldwell came to Washington in 1928 from the Chicago law firm of Kirkland & Ellis as the first general counsel of the Federal Radio Commission, with a mission to make the airwaves safe for commercial radio in general and WGN--a Kirkland & Ellis client--in particular. The task required only a few months, after which Caldwell resigned to become the Chicago firm’s first resident partner in Washington. Over the next years he watched with growing dismay as party politicians converted the radio commission into a vehicle of party competition. The award of a license had become “a form of patronage,” he complained. Under the prevailing, “substantial evidence” standard, judicial review was “a mere empty shell,” at least whenever an "administrative tribunal (through its attorneys) consciously frame[d] its findings of fact with an eye not so much to the evidence as to justify an a priori decision.”

In 1932, convinced that practitioners before other federal agencies shared his plight, Caldwell, who chaired the American Bar Association’s Committee on Radio Law, urged the ABA’s president to appoint a committee to address administrative law and procedure throughout the federal government. “To my surprise and dismay,” he recalled, “I was appointed chairman of the Committee, with the obligation to report to the next meeting of the Association.” FDR’s First Hundred Days intervened, so that when the “Special Committee on Administrative Law,” convened Caldwell found himself not with a relative modest project of law reform of little interest to most American lawyers, but at the center of New Deal politics.

Especially when compared to the polemics of the late 1930s, Caldwell’s reports for the special committee were remarkably cosmopolitan. Although he insisted on “a complete review on the facts as well as on the law,” he did not propose intrusive review by the federal judiciary, the American equivalent of A.V. Dicey’s “ordinary Courts of the land.” Rather, Caldwell looked to the Continent--in particular, French and German administrative courts, for inspiration. (In 1933 he even ventured that Italy’s and Russia’s “experiments afford[ed] interesting tests of the adequacy of certain methods of administration”!) Caldwell’s committee proposed that existing legislative courts (such as the Board of Tax Appeals and the Court of Customs and Patent Appeals) be combined into a single, multi-panel body as a kind of pilot for a more comprehensive administrative court.

The ABA never formally endorsed the administrative court bill, largely because of the objections of lawyers specializing in the work of existing agencies, who did not want to have to “begin at the beginning” with a new court. Caldwell was also plagued by a disruptive presence within his committee, Ollie Roscoe McGuire, counsel to the Comptroller General. (“Colonel” McGuire is pictured at right, in the garb of a major in the U.S. Army’s Finance Reserve Corps.) In some obscure capacity, McGuire had helped James Montgomery Beck, a Republican Solicitor General, write his anti-statist screed, Our Wonderland of Bureaucracy (1932). McGuire also cultivated ties to his fellow Kentuckian Mills Logan, a member of the Senate Judiciary Committee. McGuire produced a flood of wildly bombastic articles and speeches attacking administrative agencies; in private dealings he was impetuous and capable of stunning betrayals of confidences. At last he wore Caldwell down and claimed the chairmanship of the Special Committee when the radio lawyer surrendered it in the summer of 1935. In 1936 McGuire produced a more comprehensive administrative court bill, mostly, it was widely believed, so that he could become its chief justice.

Washington’s legal specialists continued to oppose any administrative court; moreover, McGuire faced an attack from a new, Diceyan quarter, in the guise of a dissenter within his committee, the Minnesota lawyer Monte Appel. While McGuire thought it obvious that generalist judges could not handle administrative appeals, Appel countered that he “believed in the well-rounded, well-seasoned, well-trained lawyer on the bench” and had “much more faith in him than in the so-called expert.” He considered the existing federal judiciary “the only reliable bulwark against the invasion of the rights of the citizen.”

McGuire bulled ahead, with unseemly explosions of anger at his opponents and poorly thought-out proposals that he sometimes neglected to bring to his committee. He and Appel publicly bickered at the ABA’s House of Delegates in January 1937. Charges and countercharges continued over the ensuing months as the drama of the Court-packing plan played itself out.

That summer McGuire proposed a wholly new approach, which would eventually become the notorious Walter-Logan bill of 1939 (on which see George B. Shepherd’s careful study in volume 90 of the Northwestern University Law Review.) Over Appel’s dissent, the special committee now proposed a series of review boards within each agency and department, with a generous grant of standing to “aggrieved” persons and strict requirements for written records and findings of fact. Review by federal courts of the internal boards was to be in line with existing, deferential law, but agencies’ rules and regulations were to be subjected to immediate, declaratory review in the Court of Claims. At its meeting in Kansas City in late September 1937, the Board of Delegates adopted McGuire’s proposals, but only as a “declaration of principle” and only after most “old-line” agencies, including the Bureau of Internal Revenue and the Interstate Commerce Commission, had been exempted from its provisions.

Arthur T. Vanderbilt, the ABA’s new president, voiced the leadership’s dismay at the situation when the Board of Governors met privately on October 2, 1937. “The Administrative Law Committee, now, as formerly, has been a one-man committee,” Vanderbilt explained. Although “there have been brilliant men on the Committee, they have shown a flare for breaking out at the wrong time.” Convinced that administrative law was “going to be our hottest spot during the present year, second only to the Supreme Court fight,” Vanderbilt decided, as he later put it, that “what was needed was a more objective approach.” Washington lawyers were clamoring for McGuire’s head and demanding that one of their number be appointed in his place, but Vanderbilt wanted to appoint “an outstanding man . . . who will look at the thing in a very broad way, and who will be prepared to give a large amount of time to it.” Three days later, just over a month since his return to Cambridge to take up a university professorship, Roscoe Pound became the chairman of the Special Committee on Administrative Law.

[The series continues here.]

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