Tuesday, June 14, 2011

Merrill on the Origins of the Appellate Review Model of Administrative Law

Thomas W. Merrill, Columbia Law School, has published Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, in the Columbia Law Review 111 (2011): 939.  Here is the abstract :
American administrative law is grounded in a conception of the relationship between reviewing courts and agencies modeled on the relationship between appeals courts and trial courts in civil litigation. This appellate review model was not an inevitable foundation of administrative law, but it has had far-reaching consequences, and its origins are poorly understood. This Article details how the appellate review model emerged after 1906 as an improvised response by the U.S. Supreme Court to a political crisis brought on by aggressive judicial review of decisions of the Interstate Commerce Commission. Once the jerry-built model was in place, Congress signaled its approval, and an academic—John Dickinson—wrote a persuasive book extolling its virtues. As a result, the appellate review model became entrenched by the 1920s and eventually spread to all of administrative law. The early adoption of the appellate review model helps explain why the Supreme Court never seriously grappled with Article III problems created by the widespread use of administrative agencies to adjudicate cases once the New Deal and the expansion of the administrative state arrived. It also helps explain why the judiciary has played such a large role in the development of administrative policy in the United States relative to other legal systems.

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