Administrative Law Commons^™

The Right To Remove In Agency Adjudication, Christopher J. Walker, David Zaring

Articles

In SEC v. Jarkesy, the Supreme Court will decide the constitutional future of agency adjudication, especially in the context of agency enforcement actions and the imposition of civil penalties. If the Court agrees with the Fifth Circuit on any of its three independent reasons for unconstitutionality, agency enforcement and adjudication schemes across the federal regulatory state will be severely disrupted, in ways that are detrimental to both the regulator and the regulated. In this Essay, we propose a path forward: In certain circumstances, the regulated party should have a right to remove an enforcement action from an in-house agency adjudication …

The Nlrb And Arbitration: Is The Board's Expanding Jurisdiction Justified?, Richard I. Bloch

University of Michigan Journal of Law Reform

This article will view the functions of the arbitrator and the Labor Board, as well as the arguments for their respective jurisdictions. It will examine the history of the subject from Lincoln Mills through the most recent words on the subject. With a view of the history of the problem and an attempt to examine realistic solutions as well as pure legal logic, the attempt will be to demonstrate the glaring need today for more specifically enunciated standards on the part of the Board. The author shall propose certain aspects of the collective bargaining situation to which the Board must …

Judicial Enforcement Of Administrative Subpoena Must Be Initiated By Service Of Process- Hemphill V. Lenz, Michigan Law Review

Michigan Law Review

Over a four-year period the city of Philadelphia had entered into contracts with Marbelite Company, a New York corporation, for traffic signal equipment. Acting pursuant to section 8-409 of the Philadelphia Home Rule Charter, the city controller served the treasurer of Marbelite, in Philadelphia, with a subpoena requiring him to produce certain corporate records and to testify concerning requisitions for payments on the contracts. Refusing to comply with the subpoena, the treasurer returned to New York. The controller then filed a petition in the Court of Common Pleas of Philadelphia County and obtained an order to show cause why the …

Ripeness And Reviewable Orders In Administrative Law, Louis L. Jaffe

Michigan Law Review

The requirement of "ripeness" as a condition for judicial review is not so much a definable doctrine as a compendious portmanteau, a group of related doctrines arising in diverse but analogically similar situations. In its most general sense ripeness is a requirement not of the administrative action to be reviewed but of the judicial controversy between the plaintiff and the agency. Consider the case where an agency has gone no further than to threaten a certain action which the plaintiff in an equity or declaratory proceeding claims would be contrary to law: here, in all strictness, the controversy concerns …

Administrative Law-Judicial Control-Injunctive Extension Of The Rate Suspension Period Under The Interstate Commerce Act, John Eppel

Michigan Law Review

Plaintiffs, two interstate carriers and a municipal corporation, and defendants, four railroad companies, were parties to an investigation and suspension proceeding before the Interstate Commerce Commission. Section 15(7) of the Interstate Commerce Act allows the Commission to suspend the effectiveness of rate revisions proposed by carriers for seven months while it is deciding whether to approve them. If no decision is reached by the end of the suspension period, the proposed rates automatically become effective subject to a subsequent determination of their validity by the ICC. Expiration of the order suspending defendants' rate proposals was imminent when, in an unprecedented …

Federal Agency Investigations: Requirements For The Production Of Documents, Frank E. Cooper

Michigan Law Review

The United States district courts are frequently called upon to decide whether an administrative agency is entitled to enforcement of a subpoena requesting production of documentary evidence which the person to whom the subpoena is addressed assails as an unnecessary and improper inquisitorial investigation.

Neither the statute nor the decision-landmarks though they both are-offers a convenient rule of thumb to guide the district courts in the intensely difficult problems posed by requests for enforcement of administrative subpoenas.

However, an examination of the decisions passing upon such requests does disclose the standards by which the courts apply the three classic tests, …

Leach & Sugg, Jr.: The Administration Of Interstate Compacts, Joseph E. Kallenbach

Michigan Law Review

A Review of The Administration of Interstate Compacts. By Richard H. Leach and Redding S. Sugg, Jr.

Regulation Of Business - Antitrust Laws - Effect Upon A Subsequent Antitrust Suit Of Fcc Approval Of An Exchange Of Television Stations, John F. Powell S.Ed.

Michigan Law Review

United States v. Radio Corporation of America-Creation of independent regulatory agencies presented the courts with the problem of allocating jurisdiction whenever the determination of proper judicial action was found to require the resolution of issues which an administrative agency was competent to resolve. To meet this problem the doctrine of "primary jurisdiction" was developed whereby administrative issues are to be decided by the agency prior to the court's determination of issues not within the realm of the agency. Application of the doctrine is based on the need for efficient and uniform agency regulation and the desirability of utilizing agency …

Administrative Law - Procedure - Primary Jurisdiction To Determine Illegality Of Contract Under Shipping Act, Stephen B. Flood

Michigan Law Review

Plaintiff, an independent shipper, sought review of a Federal Maritime Board order approving under section 15 of the Shipping Act an association's dual-rate contract system found to be "a necessary competitive measure to offset the effect of non-conference competition." The court pf appeals set aside the Board's order on grounds that the system was prohibited by section 14 Third of the same act. On certiorari to the United States Supreme Court, held, affirmed, three justices dissenting. A dual-rate contract system found by the FMB to be designed to meet outside competition is a "resort to other discriminatory or unfair …

Administrative Law - Primary Administrative Jurisdiction - Construction And Reasonableness Of Tariff Classification, Michael Scott

Michigan Law Review

Respondent railroads sued in the Court of Claims to recover from petitioner United States, as shipper, the difference between actual tariff payments and those allegedly due on shipments of aerial bomb cases containing napalm gel. Petitioner alternatively asserted that (1) since the bombs as shipped were non-explosive, respondent's advocated classification as "incendiary bombs" was inapplicable, or (2) if such classification were held to apply, then the rate was unreasonable, and preliminary resort to the Interstate Commerce Commission must be had for a determination of reasonableness. On certiorari from summary judgment for respondent, held, reversed. The commission has exclusive primary …

Determination Of Heirship, Paul E. Basye

Michigan Law Review

Nearly a hundred years have elapsed since the Supreme Court emphatically voiced its conviction as to the necessity of having some method for making a final determination concerning the devolution of the ownership of property upon the death of its owner.

Securities Legislation - Public Utility Holding Company Act Jurisdiction Of The Securities And Exchange Commission, Robert Kneeland

Michigan Law Review

In 1935 the International Paper and Power Company filed an application with the Securities and Exchange Commission to secure permanent exemption from the provisions of the Public Utility Holding Company Act of 1935. While this application was pending, the company formed a plan for recapitalization of its stock, and applied to the commission for an order validating the plan. The report of the commission on this plan was approved by the requisite number of shareholders of the company, whereupon the commission entered an order purporting to exempt from the provisions of the act the stock and the warrants for stock …

Administrative Law - Johnson Act - Jurisdiction Of Federal Courts Where State Review Procedure Prohibits Issue Of Supersedeas, William J. Isaacson

Michigan Law Review

Complainant power company attacked as confiscatory the decrease in rates ordered by the Public Service Commission of Montana. The company demanded an interloctory injunction pending a final decree. It appeared that there was on the statute book of Montana a statute prohibiting supersedeas pending judicial review in such cases. The district court granted the commission's motion to dismiss on the ground that a plain, speedy, and efficient remedy was available to the plaintiff in the state courts, and hence the requirements of the Johnson Act of May 14, 1934, were met. Therefore, so it was contended, federal jurisdiction was precluded. …

Commission Jurisdiction Over Utility Cooperatives, Israel Packel

Michigan Law Review

A group of farmers desire electricity. They propose to form a cooperative, to borrow money and to construct electric distribution lines. They probably will incorporate the cooperative as a stock or non-stock corporation in order to obtain the benefit of limited liability. The cooperative might be formed under a statute specifically enacted to authorize the formation of cooperatives or under a general incorporation statute. Normally, the charter of the cooperative will provide for equality in control by the members or shareholders and for a limited return or no return on capital investment. The cooperative will probably apply to the Federal …

The Proposed United States Administrative Court, Robert M. Cooper

Michigan Law Review

The last half century has witnessed a constant, almost relentless, increase of governmental responsibilities and services in both federal and state spheres of control. Due to the changing needs of our economic and social order, the desire for speedy, efficient and inexpensive settlement of controversies and the imperative need of specialized administrators, the task of performing these new functions has not infrequently been delegated to administrative tribunals or commissions. Neither the legislature nor the judiciary was capable of administering the myriad details or countless controversies which inevitably accompanied these new functions of government. As a consequence an administrative branch of …

Administrative Law - Johnson Act - Jurisdiction Of Federal Courts To Grant Injunctions Against Enforcement Of Rate Orders Of State Commissions, Donald L. Quaife

Michigan Law Review

Two years have elapsed since the passage of the Johnson Act restricting the jurisdiction of federal district courts to enjoin rate-making orders of state utility commissions; and the time is now ripe to survey the case law which has grown up under the act and to evaluate its results. It will be recalled that this statute came as the culmination of a long history of agitation to prevent federal court interference with what many believed to be a function which local state courts were better fitted to review. The interference aimed at had resulted from the amendment to the Judiciary …

Administrative Law-Judicial Review-Federal Equity "Powers

Michigan Law Review

Plaintiff's testator, a resident of New York, died there and at the time of his death owned certain oil paintings on temporary loan to an Art Museum in Pennsylvania, on which the State of Pennsylvania levied an inheritance tax. Plaintiff, executor under a will disposing of the pictures, filed a bill in the Federal District Court for Eastern Pennsylvania to enjoin the defendants, tax officials of Pennsylvania, from attempting to impose or collect the inheritance tax. The bill alleged diversity of citizenship and the requisite jurisdictional amount, and further that the imposition of the tax violated the Fourteenth Amendment, depriving …

Administrative Law - Statutory Interpretation - Conclusiveness Of Decision

Michigan Law Review

Pursuant to an order of the Interstate Commerce Commission, the government had paid defendant $487,116.31 as the deficit incurred during federal control and due defendant under section 204 of the Transportation Act of 1920. The Commission later reopened the proceeding and annulled the order because it had erroneously interpreted the word "deficit" in the statute to mean a decrease in net railroad operating income in the federal control period as compared with the corresponding months of the test period from July 1, 1914, to June 30, 1917, instead of a "red ink deficit." The government then sued to recover the …

Administative Tribunals-Judicial Review Of Legislative Functions

Michigan Law Review

On refusal of the Federal Radio Commission to renew its license for a broadcasting station with the existing terms, on the ground that public convenience and necessity did not require it, the applicant company availed itself of a statutory appeal to the court of appeals of the District of Columbia which reversed the finding as to public convenience and necessity. The commission applied to the United States Supreme Court for a writ of certiorari. Held, writ dismissed on the theory that the court had no jurisdiction to review the exercise pf an administrative or legislative power, and that the …

Book Reviews

Michigan Law Review

A collection of book reviews by multiple authors.

Indemnity Act Of 1863 A Study In The War-Time Immunity Of Governmental Officers, James G. Randall

Michigan Law Review

One of the familiar measures of the Union administration during the Civil War was the suspension of the habeas corpus privilege and the consequent subjection of civilians to military authority. The essential irregularity of such a situation in American law is especially conspicuous when one considers its inevitable sequel-namely, the protection of military and civil officers from such prosecution as would normally follow invasion of private rights and actual injury of persons and property. Such protection was supplied by a bill of indemnity passed in 1863, and this law, with its amendment of i866, forms a significant chapter in the …

Supreme Court's Construction Of The Federal Constitution In 1920-1921, Thomas Reed Powell

Michigan Law Review

Cases Arising under the Constitution or Laws of the United States. The question whether a case presents a "federal question," so called, is raised in a number of the controversies in which the asserted federal question was considered and answered. Only a few of these instances need special mention. In Hartford Life Ins. Co. v. Blincoe,3 after reversal by the Supreme Court of a state judgment against a defendant, a second judgment was rendered by the state court on different grounds. These included holding an assessment on an insurance policy to be void for the inclusion of a state tax …