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"The Administrative Agency in Historical Perspective" by Bernard Schwartz (1961)

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"The Administrative Agency in Historical Perspective" (1961) is an article by American legal and political scholar Bernard Schwartz that compares the development of the modern administrative state with the administrative tribunals of 16th and 17th century England. Schwarts opens the article by analyzing historical arguments that defend federal agencies' authority to issue judicial decisions through administrative adjudication, primarily focusing on the claim that administrative agencies can adjudicate disputes more efficiently than traditional courts of law. Schwartz contradicts this claim and further argues that the concentration of legislative, executive, and judicial authority within administrative agencies not only violates the constitutional principle of separation of powers, but also results in an incompatible combination of agency functions. He concludes the article by comparing the modern administrative state with the administrative tribunals of 16th and 17th century England and proposing solutions for distinguishing judicial authority from other agency functions.

HIGHLIGHTS
  • Author: Bernard Schwartz
  • Source: Indiana Law Journal
  • Abstract: In the introduction to the article, Schwartz provides the following summary of his argument:


    "The present crisis of the administrative process in this country makes it particularly appropriate that we look at the administrative agency in the perspective of history, for it is erroneous to assume that administrative law is something entirely new in our system. On the contrary, what we have been seeing in our own day has been a renaissance of administrative justice of the type which prevailed in the common-law world in Tudor and Stuart times."[1]

    • Author

    Bernard Schwartz

    Bernard Schwartz was an American legal scholar. He served on the New York University School of Law faculty for 45 years and held the position of Edwin D. Webb Professor of Law from 1963 until his retirement in 1992. Following his retirement from NYU, Schwartz was appointed to serve as the Chapman Distinguished Professor of Law at the University of Tulsa Law School. He wrote more than 60 books over the course of his career on topics ranging from the U.S. Supreme Court to federal administrative agencies. Schwartz passed away in 1997 after being struck by a vehicle in Tulsa, Oklahoma. Below is a summary of Schwartz's education and career:[2]

    • Academic degrees:[2]
      • Undergraduate degree, City College of New York
      • LL.B., New York University (1944)
      • LL.M., Harvard University (1945)
      • Ph.D., Harvard University (1947)
      • LL.D., Cambridge University (1956)
      • Doctorat d'universite, University of Paris (1963)
    • 1947-1992: Faculty, New York University School of Law
      • 1963-1992: Edwin D. Webb Professor of Law
    • 1992-1997: Chapman Distinguished Professor of Law, University of Tulsa Law School

    "I. Place of Administrative Justice"

    In the first section of the article, Schwartz draws a distinction between judicial courts of law, in which arguments and evidence are considered before applying the law, and administrative proceedings, in which decisions are reached at the discretion of the presiding officer. Schwartz analyzes arguments from the British Committee on Ministers' Powers that aim to distinguish between judicial courts of law and administrative proceedings. He reaches the conclusion that the two processes are no longer distinct from one another since many modern administrative agencies are authorized to render judicial decisions:

    “
    If we refer back to the distinction made by the Committee on Ministers' Powers between 'judicial' and 'administrative' decisions, there appears to be little doubt that many of the agencies referred to by Chief Justice Hughes are vested with the authority to render truly judicial decisions. From an analytical point of view, in fact, the powers of decision conferred upon many federal agencies could easily have been vested in the courts. Thus, a proceeding for a reparation order by a shipper against a carrier before the Interstate Commerce Commission cannot be distinguished logically from a suit for damages brought in a court. Nor can the cease and desist power of an agency like the Federal Trade Commission be differentiated in its legal effect from the injunctive authority traditionally exercised by courts of equity. In these, and a whole host of other cases, the administrative agency is vested with judicial power just as are the ordinary courts of justice. (266)[1][3]     		”


    "II. Reasons for Administrative Justice"

    Schwartz claims that modern administrative adjudication has developed as a component of the overall legal system, contrary to what he describes as Anglo-American traditions. He argues that as administrative regulation progressed in the early 20th century, judicial courts of law in the United States were considered to be ineffective tools for enforcing regulatory policies. While courts could arbitrate disputes, they could not function as both policeman and judge in order to effectively implement regulations. Schwarz continues by citing historical sources claiming that judicial justice was slow and costly to obtain, while administrative adjudication could be performed quickly and inexpensively:

    “
    These difficulties, it has been claimed, are avoided by vesting judicial power in administrative agencies instead of courts. The administrative

    agency, composed of experts and able to devote its exclusive attention to its particular specialized field, could avoid the technicalities which are popularly associated with 'the law's delays.' 'A cheap and speedy forum is intended to be made available through administrative agencies to those whose circumstances and immediate needs might be ill-served by extensive litigation of a traditional type.' The supposed ability of the agencies to avoid the expense and delay inherent in litigation in the courts has been a major consideration in inducing the legislator to select the administrative rather than the judicial forum since the beginning of our administrative law. Under the Interstate Commerce Act, asserted Mr. LaFollette during the Congressional debates, 'every citizen of the United States is given the right to present his grievance and have his case tried without the attendant cost which now practically closes the courts to him.' (268)[1][3]

    		”


    "III. Current Validity of Reasons for Administrative Justice"

    In this section, Schwartz aims to analyze the arguments that gave rise to administrative adjudication as a form of dispensing justice. He focuses on the argument that judicial courts are too slow to adapt to changing social conditions and cannot address regulatory disputes as efficiently as administrative entities. Schwartz claims that this assertion is a myth—administrative adjudication is actually cumbersome, slow, and hampered by delays—and provides context from the 1949 and 1953 Hoover Commission reports to support his position. He further argues that administrative adjudication is more costly than traditional courts of law since administrative decisions may be subject to additional judicial review:

    “ Over half a century's experience with the administrative process in operation has proven the claim of its proponents that it would realize the basic goal of every legal system-that of dispensing speedy and inexpensive justice-to be more or less a will-o'-the-wisp. Every study that has been made of the actual working of the federal regulatory agencies has complained of the cumbersome and overtechnical nature of administrative justice. Thus, according to the Attorney General's Committee on Administrative Procedure, 'the administrative agencies have frequently failed to provide a speedy forum, unhampered by burdensome delays. Lengthy hearings and incredibly voluminous records, sometimes running into tens of thousands of pages, have been phenomena not rare in the administrative process.' And, in 1949, the first Hoover Commission noted its concern 'with the growth of cumbersome and costly administrative procedures.' 'Administrative justice today,' asserted the Commission, 'unfortunately is not characterized by economy, simplicity, and dispatch.' (270)[3] ”

    "IV. Concentration of Powers"

    Schwartz presents his argument that federal administrative agencies violate the constitutional principle of separation of powers by concentrating legislative, executive, and judicial functions within a single administrative body. He cites opposing arguments stating that the combination of functions is necessary in order to administer all phases of regulation—establishing policies, policing actors, and adjudicating disputes. However, Schwartz claims that none of these functions can be performed effectively within a single federal agency because the combination of duties are incompatible–for example, the judicial functions of an agency are influenced by its joint responsibilities to investigate and prosecute regulatory infractions. Moreover, Schwartz claims that the structure of certain independent federal agencies make it difficult for the president to enact policy goals when agency heads may be committed to the policy positions of prior administrations:

    “ Why not then, one might ask, remove from these agencies their independent character and place them within the structure of the executive branch, subject to the complete hierarchical control of the President? Such a general solution is precluded by the fact that most of the federal agencies, in addition to their functions of implementing and administering their enabling legislation, which are essentially executive in nature, are vested with the duty of deciding cases in which alleged violators of the legislation are proceeded against. This latter duty is basically judicial in nature-that of trying defendants brought before the bar of justice (administrative rather than judicial justice, it is true, but that does not change the primarily judicial nature of the function). The exercise of a function of this type is one which under Anglo-American concepts is deemed to be best exercised in an atmosphere of independence rather than as part and parcel of the very process of execution of the laws exposed to all of the political pressures which play upon the political branches of government. Hence, the independence of these agencies from the Chief Executive was underlined by the Supreme Court in the famous case of Humphrey's Executor v. United States." But the purpose of securing truly independent judicial determinations is subverted by the possession by the agencies of the executive functions referred to above. They cannot be expected to decide cases before them with that 'cold neutrality of an impartial judge' of which Burke speaks when it is they who have instituted the proceedings against the private party and they who have the burden of presenting the case against him. (275)[1][3] ”

    "V. Historical Perspective"

    In the final section, Schwartz provides historical context for his argument that the modern administrative state harkens back to the administrative tribunals of 16th and 17th century England. He examines these former administrative tribunals, the Star Chamber and the Chancery, and outlines the history of how they were abolished in favor of a return to common law principles. Schwartz claims that a similar trajectory must be followed in order for modern administrative law to adequately dispense justice. He argues that administrative bodies must establish separate judicial entities, which must develop over time into distinct courts of law:

    “ It will immediately be objected that the development suggested will result in anything but a symmetrical judicial system. The multiplication of courts envisaged cannot help but confuse the judicial structure. It should not necessarily be assumed, however, that the evolution of the separate administrative courts will be the ultimate stage. On the contrary, it is entirely probable that those courts themselves will eventually coalesce into a single court. 'Legal history,' as Dean Pound has put it, 'shows the general course of development to be a setting up of a multitude of specialized tribunals, and then a gradual consolidation of them into a simple unified system.' The ultimate stage could thus be the establishment of an administrative court which would exercise the judicial functions now vested in the federal regulatory agencies. (280)[1][3] ”

    See also

    Full text

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 Indiana Law Journal, "The Administrative Agency in Historical Perspective," Spring 1961
    2. ↑ 2.0 2.1 The New York Times, "Bernard Schwartz Dies at 74; Legal Scholar and Historian," December 26, 1997
    3. ↑ 3.0 3.1 3.2 3.3 3.4 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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