Administrative Law Commons^™

Administrative Law - Judicial Control - Veterans Administration's Findings Of Law And Fact Are Not Conclusvie In Government's Suit To Recover Sums Allegedly Due From Veteran, James M. Porter S.Ed.

Michigan Law Review

An action was brought by the United States to recover sums of money paid to a veteran as an employment readjustment allowance. It was claimed that the defendant was not entitled to the money because of his misstatement of earnings. Prior to this action, an administrative finding that the defendant had knowingly received the allowance contrary to law and was obliged to return it was approved by the Administrator of Veterans' Affairs. The government maintained that section 705 of the Servicemen's Readjustment Act required that the administrator's findings of law and fact be conclusive and binding on the court. The …

Administrative Law - Judicial Review - Ripeness For Revew Of An Interstate Commerce Commission Order, Robert Knauss

Michigan Law Review

In order to operate in interstate commerce, motor carriers must obtain a certificate of public necessity and convenience from the Interstate Commerce Commission and must obey the Interstate Commerce Act. However, motor vehicles used in carrying " . . . agricultural . . . commodities (not including manufactured goods) . . ." may operate free of the act. The commission on its own initiative investigated the meaning of the term "agricultural commodities," and after two years published a seventy-one page list classifying certain commodities as within or not within the exemption. Petitioner, an interstate trucker of various commodities listed as …

Administrative Officers' Tort Liability, Kenneth Culp Davis

Michigan Law Review

Case law on tort liability of public officers and employees is much more interesting than one might expect on the basis of abstract contemplation. The traditional common-law notion that an employee should, as against the employer, bear the ultimate responsibility for his negligence has been exposed as seriously unrealistic in a holding by a unanimous Supreme Court; the decision concerning the government employee is potentially applicable to corporate employees. The many holdings that officers are not liable for deliberate and malicious torts are based on the intriguing view that justice cannot be done when malice is proved, without opening the …

Estoppel And Crown Privilege In English Administrative Law, Bernard Schwartz

Michigan Law Review

Perhaps the most anachronistic doctrine in Anglo-American public law is that of sovereign immunity. Under it, the State is placed in a privileged position of immunity from the principles of law which are binding upon the ordinary citizen, unless it expressly consents to be bound by such principles. In Anglo-American law the infallibility attributed to the King in the days when he was personally sovereign has been more recently recognized in the State, which the Crown now merely personifies. Thus, even today, and even in the American democracy, the basic principle of public law is that the King can do …

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.

Patent Office Performance In Perspective, George E. Frost

Michigan Law Review

" the only patent that is valid is one which this Court has not been able to get its hands on."

Justice Jackson's note of despair reflects all too accurately the treatment patents have seemingly received in the hands of the courts since the "new trend" of recent years. It has become the legal fashion to characterize letters patent as something the Patent Office issues and the courts strike down. Statistical support for this conclusion can be readily assembled.

International Law - United Nations - Administrative Tribunals As Adjudicators Of Disputes Arising Out Of Employment Contracts With International Organizations, Edward W. Powers S.Ed.

Michigan Law Review

A crucial though relatively unpublicized problem arising from the creation of international organizations is that of establishing and maintaining the staff or secretariat needed to perform the administrative functions of these organizations. Such a staff must possess not only the competence and integrity of a national civil service, but also an international loyalty or outlook which includes " ... an awareness . . . of the needs, emotions, and prejudices of the peoples of differently-circumstanced countries ... [and] a capacity for weighing these frequently imponderable elements in a judicial manner· before reaching any decision to which they are relevant."

Gray Vs. Powell And The Scope Of Review, Bernard Schwartz

Michigan Law Review

In dissenting from the decision of the Supreme Court in a celebrated administrative-law case, Justice Jackson once declared: "I give up. Now I realize fully what Mark Twain meant when he said, 'The more you explain it, the more I don't understand it.' " It cannot be denied that the learned justice's reaction is one which is often felt by students of Supreme Court jurisprudence. This has been particularly true of the field involved in the case which called forth Justice Jackson's plaint--i.e., that of administrative law. American administrative lawyers have not infrequently had this same response to decisions of …

Antitrust Administration And Enforcement, John T. Chadwell

Michigan Law Review

The importance of the nation's antitrust policy requires that administration and enforcement powers and techniques be equal to the huge task of effectively safeguarding competition. The recommendations of the Attorney General's Committee represent a statesmanlike effort to balance the need for effective enforcement with the need for the preservation of fairness and the conservation of time and resources in antitrust litigation. Some of the recommendations will undoubtedly engender heated controversy; others seem relatively uncontroversial.

Many individual topics are dealt with in the Report of the committee and space does not permit comment upon all of them. The following discussion is …

Administrative Discretion In The Award Of Federal Contracts, Arthur S. Miller

Michigan Law Review

For our present purposes, the point to be seen is that while this article is inquiring into the question of choice of contractor, the government is largely in control of the other chief attribute of traditional liberty of contract: the terms and conditions of the contract itself. We may thus summarize a first conclusion in the inquiry under consideration in this manner: the government is under no restraint as to many of the terms and conditions of its contracts and may impose those conditions it deems necessary. These are imposed as a result of a statute (an example of …

White: The Jacksonians, M. Fred Mallender, Ii S.Ed.

Michigan Law Review

A Review of The Jacksonians. By Leonard D. White

Admininstrative Law - Federal Injunctive Relief Against State Administrative Orders, John C. Hall S.Ed.

Michigan Law Review

The increasing tendency of state legislatures to establish administrative agencies to regulate various specialized fields has created serious new problems for both courts and lawyers. In dealing with state administrative agencies, the federal courts have been confronted with the dual problem of protecting the individual's constitutional rights and at the same time respecting the prerogatives of the states. The result has been the development of a "hands-off" policy in the federal courts, leaving the initial determination of rights to the state courts, and limiting the use of the federal injunctive power. The purpose of this comment is to indicate the …

A Decade Of Administrative Law: 1942-1951, Bernard Schwartz

Michigan Law Review

The past ten years have been particularly momentous ones in the development of American administrative law. It is, indeed, not too much to say that there are few, if any, aspects of that field which have not witnessed important changes during that time. It is for this reason that an analysis of administrative law developments during the past decade should prove useful. However valuable an annual survey of the law may be, it suffers from the shortness of the period which it covers. An analysis of developments during a decade enables a broader perspective to be obtained.

It will be …

Separation Of Powers Revisited, Reginald Parker

Michigan Law Review

Since administrative law is law that governs, and is applied by, the executive branch of government, it is necessarily as old as that branch. As long as executive and judiciary were one and the same and the king at the head of both, all of the law was in fact "administrative" though the term was not used. When, however, out of the amorphous mass of the legal order a fixed body of law courts began to emerge with jurisdiction over the most important legal problems, the term "administrative law," had it been used, would have acquired a specific meaning. Property, …

Administrative Law-Federal Trade Commission-Constitutional And Statutory Authority To Order Additional Compliance Reports, Charles Myneder S. Ed.

Michigan Law Review

Proceeding under section 5 of its organic act, the Federal Trade Commission issued an order requiring defendants to cease and desist from engaging in certain trade practices. The court of appeals, in its decree affirming the order, directed compliance reports to be filed with the commission within a specified time, reserving jurisdiction to enter further orders. Four years after the compliance reports were filed, the commission, on its own motion, ordered additional reports to show continued compliance. Defendants refused to report, challenging the authority of the commission to issue the order. The district court dismissed suit by the commission for …

Fourth Series Of Thomas M. Cooley Lectures, Michigan Law Review

Michigan Law Review

The fourth series of Thomas M. Cooley Lectures will be given by E. Blythe Stason, Dean of the University of Michigan Law School, on April 24 to 28, inclusive, at 4:15 P.M. in Room 150 of Hutchins Hall, the University of Michigan. The first series of Cooley Lectures was given by Professor Henry Rottschaefer of the University of Minnesota, the second series by Professor Burke Shartel of the University of Michigan, and the third series by Professor Zechariah Chafee, Jr. of Harvard University.

Vanderbilt: Men And Measures In The Law, Michigan Law Review

Michigan Law Review

A Review of MEN AND MEASURES IN THE LAW. By Arthur T. Vanderbilt.

Limitations On Congressional Investigation, George Meader

Michigan Law Review

Increasingly, federal laws embodying far-reaching national policies are being couched in broad and general terms. The effect of this type of legislation is to place wide discretionary powers in administrative officials and to throw upon the courts an immense burden of interpretation in applying general principles to specific factual situations. There have been sensational instances of hasty passage of corrective legislation made necessary by court decisions interpreting a poorly worded law in a way Congress did not intend, such as the portal-to-portal and overtime-on-overtime decisions. Meanwhile, the practicing lawyer is at a loss to advise his clients of the effect …

Administrative Tribunals-Judicial Review Of Administrative Interpretations Of Statutory Provisions-Recent Federal Developments, L. B. Lea S. Ed.

Michigan Law Review

The first half-century of experience with administrative tribunals demonstrated that prediction of the scope of judicial review in any particular case was impossible because so many factors entered into determination of the question. Constitutional limitations began to receive less emphasis as practical necessity for according this new "fourth branch" of government a place in the broad scheme of administration of justice became more apparent. Doubtlessly the courts felt that "supremacy of law" demanded closest scrutiny of the activities of this new governmental instrumentality, which was beginning to occupy areas traditionally thought reserved exclusively for the judiciary. As the courts' respect …

A Review Of Annual Survey Of American Law: 1947, Edson R. Sunderland

Michigan Law Review

This is the sixth annual volume in which the faculty of the New York University School of Law has published its summary of the important developments in American law. The magnitude of the task required to produce these volumes would be considered beyond the capacity of the teaching staff of any single law school if the actual publication, year by year, of these monumental surveys did not prove that it could be accomplished.

Carrow: Background Of Administrative Law, Michigan Law Review

Michigan Law Review

A Review of BACKGROUND OF ADMINISTRATIVE LAW. By Milton M. Carrow.

Taxation-Administrative Law-Judicial Review Of Determinations Of United States Tax Court-The Rule Of The Dobson Case, Rosemary Scott S.Ed.

Michigan Law Review

In the field of administrative tax law there is no more intriguing subject for speculation than the scope of judicial review of decisions of the United States Tax Court as sought to be delineated in Dobson v. Commissioner three years ago. The case was a valiant attempt to limit the scope of review of appellate courts by defining the area in which the findings of the Tax Court would be conclusive. The task was an impossible one at the outset because of the lack of standard definition, except at the core, of the flexible and fluid concepts of "findings of …

Mandamus To Review State Administrative Action, Foster H. Sherwood

Michigan Law Review

The appearance of a substantial body of administrative law in the United States preceded its recognition as such by a good many years. In the intervening period, the courts made every effort to fit the new and unfamiliar jurisprudence into old and familiar forms, particularly those of the common law. This was a natural development, both because it accorded with common law traditions of adjustment, and because there was no legislative recognition of the view for action. The recognition that the problems of administrative law cannot invariably be solved within the framework of traditional legal concepts has paralleled the growing …

Administrative Law-The Choice Of Remedy-Modification Of Administrative Order By Court, John W. Potter S.Ed.

Michigan Law Review

The Federal Trade Commission in proceedings under section 5 of the Federal Trade Commission Act found, inter alia, that petitioner, a manufacturer of overcoats, used a deceptive and misleading trade name, Alpacuna, which induced the erroneous belief that its coats contained vicuna. The commission issued a cease and desist order banning the use of the word Alpacuna to describe petitioner's coats. The circuit court of appeals found that the commission's findings were supported by substantial evidence, but felt that the remedy was unduly harsh because of the fact that the public interest could have been adequately protected by using qualifying …

Administrative Law-Exhaustion Of Administrative Remedies As A Prerequisite To Judicial Review-Discretionary Treatment By Federal Courts, James E. Dunlap S.Ed.

Michigan Law Review

The recent Supreme Court decision in Levers v. Anderson held that the rule that one must exhaust his administrative remedies before he is entitled to judicial review does not operate automatically so as to preclude judicial relief when such relief has been expressly permitted by statute. Stated in this way, it is difficult to see how one could reach a different conclusion. Nevertheless, it is believed that this decision, which resulted in a reversal of a circuit court's judgment, did much to remove certain confusion in this field.

Administrative Law-Prior Resort Doctrine-Resort To The Railroad Adjustment Board Before Court Action, William H. Buchanan

Michigan Law Review

The decision in a recent case to the effect that a dispute concerning the construction of a contract of employment between a labor union and a railroad may be adjusted by carrying it before the Railroad Adjustment Board, or by carrying it directly to the courts makes this an apt time to examine the applicability of the doctrine of prior resort to disputes. covered by the Railway Labor Act. Such an examination seems especially necessary in view of the fact that in such cases the courts have not even mentioned the doctrine.

Administrative Law-Developments: 1940-1945 (A Service For Returning Veterans), E. Blythe Stason

Michigan Law Review

No period in American history has ushered in more sweeping changes in the legal structure than has the last decade and a half. No area of the law has witnessed more rapid development than has administrative law. A sketch of the progress of administrative law during the five-year period 1940 to 1945 reveals an important refining of the "quasi judicial" procedures--procedures which, because of their swift and topsy-turvy growth, can well use a little refining.

The purpose of the following survey is two-fold; first, to outline the more significant developments of the last half decade, relating the new materials to …

Aspects Of Wage Stabilization By The National War Labor Board, David Haber

Michigan Law Review

Most economists assume that behind an unrestricted war economy lurk the dangers of inflation. Although national income increases, so much of the country's productive effort is devoted to the manufacture of war goods that the number of articles available for civilian consumption necessarily diminishes. This gap between the available supply and the existing purchasing power has the effect of raising prices. Rising wages aggravate this situation because they increase production costs which are then passed on to the consumer in the form of higher prices, and because, by further increasing the purchasing power of the population, they increase the gap …

Freedom Of The Press-Administrative Censorship-The "Esquire" Decision, John B. Waite

Michigan Law Review

One of the most important cases before the courts was decided by the Circuit Court of Appeals of the District of Columbia on June 4--a case involving asserted absolute discretion in a government official to determine the right to second-class mail privileges, and thereby, indirectly, to censor the press. The background facts of the case are essential to appreciation of its importance.

A Further Legal Inquiry Into Renegotiation: Ii, Charles W. Steadman

Michigan Law Review

Several issues concerning constitutionality of the Renegotiation Act were discussed in a previous article. That prior inquiry was, of course, not complete, nor is it possible here to exhaust all of these problems. The changes which the Revenue Act of 1943 made in renegotiation together with the manifest importance of this subject and the national interest which has been created by the challenges made concerning its constitutionality warrant further inquiry into this phase of the act. The issues of delegation of legislative authority, impairment of contracts, due process and judicial review, as well as the nature of renegotiation as a …