Administrative Justice: Formal Prescription and Informal Adjudication

Date01 September 1961
Published date01 September 1961
AuthorPeter Woll
Subject MatterArticles
University of California, Los Angeles
GROWTH of administrative law has profound implications upon
legal theory and judicial practice. It is possible that with the development
-JL of administrative law fundamental changes are taking place in the com-
mon-law world which have not been taken sufficiently into consideration by
judges, practitioners, and scholars in the law. Probably the most significant altera-
tion of common-law practice by administrative agencies is the extensive utilization
of informal procedure, indigenous to all areas of administrative adjudication.
The purpose of this article is to analyze the importance, merit, and implications
of informal administrative adjudication in light of constitutional and common-
law theory.
The fact of administrative adjudication at once appears to conflict with the
common law and the Constitution. Article III requires that &dquo;the judicial power
of the United States, shall be vested in one Supreme Court, and in such inferior
courts as the Congress may from time to time ordain and establish.&dquo; 1 The courts,
however, have constitutionally justified the exercise of judicial power’ by extra-
judicial agencies through distinguishing (1) the judicial power of the United
States under Article III of the Constitution from (2) judicial power in the gen-
eric sense. The courts permit the exercise of judicial power by agencies outside of
the judicial branch; however, when the judicial power of the United States under
Article III can be identified the courts require its vestment in the Supreme Court
and inferior courts established by Congress. Conversely, no judicial power which
is not encompassed by Article III can be vested in the judicial branch.3
In the
Ferreira case, for example, the court noted in indicating that what might be
proper for a territorial court (legislative court) is not necessarily a proper func-
tion in a United States District Court:
The powers conferred by these acts of congress upon the judge as well as the secretary
[of the Treasury], are, it is true, judicial in their nature. For judgment and discretion must be
exercised by both of them. But it is nothing more than the power ordinarily given by law to
Constitution of the United States, Art. III, #
The term "judicial power" is used here in the generic sense. The courts seem reluctant to use
this term when referring to administrative adjudication as it is frequently used when refer-
ring to the judicial power of the United States under Article III; thus the reader may sub-
stitute the term judicial function, judicial act, judicial business, judicial matter, etc., all of
which are used with great frequency to avoid using the term "judicial power." Since the
author feels that in essence identical power is exercised in many instances both within and
outside of the judicial branch the term judicial power will be used in a generic sense and
distinguished from "the judicial power of the United States" under Article III.

I.CC. v. Brimson, 154 U.S. 444 (1894); In re Sanborn, 148 U.S. 222 (1893); U.S. v. Ferreira,
13 How. 40, 48 (1852); American Insurance Co. v. Canter, 1 Pet. 511 (1828); Hayburn’s
Case, 2 Dall. 409, 410 (1792). O’Donoghue v. U.S., 289 U.S. 516 (1933) illustrates an excep-
tion to this rule.

a commissioner appointed to adjust claims to lands or money under a treaty; or special powers to
inquire into or decide any other particular class of controversies in the public or individ-
uals may be concerned. A power of this description may constitutionally be conferred on a
secretary as well as on a commissioner. But it is not judicial in either case, in the sense in which
judicial power is granted by the constitution to the courts of the United StateS.4
The utilization of these concepts enables the courts to permit the exercise of
judicial power beyond their sphere without an apparent violation of Article III.
Judicial power may be vested in administrative agencies at both the national and
state level, and if necessary it may be united with legislative functions.5
Judicial power, in the generic sense, involves an adversary proceeding6 in
which a final determination is made. In the words of Holmes, &dquo;a judicial in-
quiry investigates, declares and enforces liabilities as they stand on present or
past facts and under laws supposed already to exist.&dquo; 7 Because finality is a neces-
sary attribute of judicial power the courts will not accept jurisdiction which sub-
jects their decisions to further review by an extra-judicial agenCy;8 however, this
does not prevent final judicial power from legally residing outside of the judicial
branch. The Court has stated:
we do not consider congress can either withdraw from judicial cognizance any matter which,
from its nature, is the subject of a suit at the common law, or in equity, or admiralty; nor, on
the other hand, can it bring under the judicial power a matter which, from its nature, is not a
subject for judicial determination. At the same time there are matters, involving public rights,
which may be presented in such form that the judicial power is capable of acting on them,
and which are susceptible of judicial determination, but which congress may or may not bring
within the cognizance of the courts of the United States, as it may deem proper.’
The Court notes further: &dquo;It is true, also, that even in a suit between private
persons to try a question of private right, the action of the executive power, upon
a matter committed to its determination by the constitution and laws, is conclu-
sive.&dquo; 10
Judicial finality may, then, be vested in administrative agencies providing the
courts do not find reason for intervention.&dquo; Such finality results from judicial
self-restraint, not legal prohibitions upon judicial review. There is little doubt
that where the courts want to intervene they can legally find sufficient reason for
so doing. Long-standing criteria precluding such review, e.g., judicial refusal to
review issues of &dquo;fact&dquo; (expertise) as opposed to those of &dquo;law,&dquo; may be ignored if

Ferreira, op. cit.
Prentis v. Atlantic Coast Line, 211 U.S. 210 (1908); Dreyer v. Illinois, 187 U.S. 71, 83, 84 (1902).
The term "adversary" does not require articulated conflict among parties, but rather an asserted
claim on the part of a specific party requiring a determination according to legal standards.
The judicial power "is capable of acting only when the subject is submitted to it by a party
who asserts his rights in the form prescribed by law. It then becomes a case...." I.C.C. v.
Brimson, 154 U.S. 444, 475 (1894).
Prentis v. Atlantic Coast Line, supra at 226.
Hayburn’s Case, op. cit.
U.S. v. Ferreira, op. cit.
Murray v. Hoboken Land
Improvement Co., 18 How. 272, 284 (1856).

Ibid., at 285, citing Luther v. Borden, 7 How. 1 (1894); and Doe v. Braden, 16 How. 635 (1854).
In this sense administrative finality, where it exists, is de facto, not de jure.

the courts decide that intervention is necessary. 12 In certain areas where final
judicial power is given by Congress solely to an administrative agency the courts
have refused to intervene. 13 In others, regardless of apparent congressional intent
to limit justifications for judicial review, the courts have intervened to prevent
denial of due process of law. 14
In summary, although Article III of the Constitution vests judicial power in
one Supreme Court and inferior courts to be established by Congress, the courts
have permitted judicial power to be exercised by administrative agencies. As one
notable scholar has concluded,
... though the courts will not perform administrative acts, there is no constitutional objec-
tion to vesting the performance of acts essentially judicial in character in the hands of the
executive or administrative agents, provided the performance of these functions is properly in-
cidental to the execution by the department in question of functions peculiarly its own. Further-
more... there is
subject to the same qualification, no objection to rendering the administra-
tive determinations conclusive, that is, without appeal to the courts, provided in general the re-
quirements of due process of law as regards the right of the person affected to a hearing, to pro-
duce evidence, etc., have been met.’
Providing the criteria of due process of law are followed there is no constitutional
inconsistency in the exercise of judicial functions by administrative agencies.
Due process generally requires administrative adherence to the judicial model
insofar as feasible; however because of the unique needs of administrative ad-
judication the courts have permitted administrative practice which would not be
acceptable in a court of law.
The common law and administrative adjudication
Although there is apparently no constitutional problem to administrative
agencies exercising conclusive jurisdiction over matters of a judicial nature, there
is a common-law objection to any exercise of judicial functions outside of the
realm of the ordinary court system. A fundamental common-law concept is that
of &dquo;supremacy of law.&dquo; One of the best early expressions of this theory is found
Contrast in this respect such cases as N.L.R.B. v. Standard Oil Co., 138 F.2d 885 (2d Cir. 1943);
O’Leary v....

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