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Show Federal Agencies Obstruct Judicial Review, Charges Law Dean NEW YORK Challenging the view that "law is whatever is done officially," Dr. Roscoe Pound, former Dean of the Harvard Har-vard Law School, urges that immediate im-mediate and effective checks be placed on the "administrative absolution" ab-solution" of federal agencies, in the Spring number of "American Affairs," a quarterly of opinion published by the National Indus-1 trial Conference Board. I In the article, "What Is Happening Hap-pening to the Law," Dr. Pound finds that for a generation the courts have leaned over backward back-ward in the effort to facilitate the administration of social legislation, leg-islation, yet "exemption from judicial scrutiny of its action seems to be the ambition of every federal administrative agency, ag-ency, and is urged by a group of writers and teachers with increasing in-creasing insistence." . "As a result," he says, "with the multiplication of these agencies, agen-cies, the increasing sujection of every form of activity to administrative admin-istrative regulation, and hostility of administrative agencies to all attempts to impose effective legal checks upon them, we have been coming in practice to a condition condi-tion of what may well be called administrative absolutism. This is nothing short of revolutionary in our American policy and some academic teachers of the science of politics do not hesitate hesi-tate to pronounce it a revolution and to praise it as such. "Instead of a law which thinks of citizens and officials as equally equal-ly subject to law, we are told of a public law which subordinates the citizen to the official and ' enables the latter to put the claims of one citizen over those of another, not according to some general rule of law but according ac-cording to his personal ideas fcr the time being." Dr. Pound declares that many of the administrative agencies entertain complaints, institute investigations, in-vestigations, begin what amounts to prosecutions before themselves, them-selves, allow their own subordinates subor-dinates to act as prosecutors and often make adjudications in conference con-ference with those same subordi- . nates. ' "All this," he finds, "runs counter to the most elementary and universally recognized prin- , ciple of justice." Under the rule of law, Dr. Pound cites the protection of the J citizen that is afforded by a 1 scrupulous hearing of both sides on every point, care of the I courts to adhere to the high I standards of a great profession, the keeping of detailed public records of evidence and decis- I (Continued on Page 5) Review Obstructed (Continued From Page 1)' ions, and the opportunity for independent in-dependent and unprejudiced review re-view of a 'judge's decision. In contrast to the rule of law with its stringent checks on possible pos-sible injustice, he observes, is the absence or practical ineffec tiveness of checks on administra tive rule making and action. Administrative Ad-ministrative rules and rcgula- , tions often have the force of law, and affect interests of as much importance to individuals I as those affected by statutes or rules of court, and sometimes more, Dr. Pound says. "Usually the first knowledge that those affected have of a rule is after it has gone into effect. ef-fect. The first opportunity they have to object to it is usually after it is sought to be enforced against them and they may be afforded an opportunity to attack at-tack it in the courts. By this time serious and even irreparable injury may have been done to an individual and his business. Moreover, the scope given to administrative ad-ministrative rule making today-is today-is so wide that challenging of details in the courts""is not easy and often is not effectively available. avail-able. 'Frequently," he continues, "the regulations seem to be framed on the assumption that the case against the respondent has been established in advance and so it is a waste of time to allow him to make his case. There is little idea of fairness as between the government and the citizen. The interests of private persons arc held negligible in the zeal to get results. The tendency ten-dency is to weigh procedure heavily in favor of the government govern-ment or the bureau; to assume I that those charged are only fil ibustering or are malefactors of great wealth and that hearing their side is only a formality." The need for checks on the unfairness of administrative agencies, ag-encies, declares Dr. Pound, is not so much a question of protecting pro-tecting wealthy wrongdoers and great corporations from reasonable reason-able regulation, since they alone have the resources to gain some protection from the courts, as it is a question of protecting the average and small business and individual citizen. "The average citizen cannot af-1 ford to bring expensive injunction injunc-tion suits and carry them through to the Supreme Court at Washington, Wash-ington, with the certainty that the administrative' agency will resist to the last, will have an i ample staff of bureau lawyers : bureau officers, and very likely the law officers of the government govern-ment at its service, and the weight of the government behind it. The ordinary business and the ordinary man are coerced into in-to settlements and consent decrees de-crees to their injury and in de-i de-i fiance of their rights." |