Mandatory Hearings in the Rule-Making Process
| Date | 01 May 1942 |
| Published date | 01 May 1942 |
| DOI | 10.1177/000271624222100117 |
| Subject Matter | Articles |
115
Mandatory
Hearings
in
the
Rule-Making
Process
By
MORRIS
DUANE
ADMINISTRATIVE
law
is
statu-
tory
regulation
in
action.
A
proper
administrative
statute
enunciates
the
regulatory
policy,
creates
the
agency
to
enforce
it,
and
sets
the
standards
by
which
it
must
be
administered.
The
purpose
of
such
a
statute
is
to
protect
or
benefit
the
public.’
Contrary
to
popular
belief,
such
statutes
have
long
formed
a
part
of
our
legal
structure.
One
of
the
principal
problems
in
draft-
ing
a
regulatory
statute
is
whether
or
not
to
include
a
provision
requiring
that
regulations
be
based
on
evidence
ad-
duced
at
public
hearings.
A
vital
prob-
lem
in
administering
statutes
which
are
silent
on
this
subject
is
to
decide
when,
if
at
all,
a
public
hearing
is
necessary
or
desirable.
Recently,
the
searchlight
of
popular
attention
has
silhouetted
the
subject
of
administrative
law
and
all
its
phases.
Economic
doctrines
of
the
Roosevelt
ad-
ministration
have
required
the
passage
of
much
regulatory
legislation.
Regu-
latory
statutes
of
the
New
Deal
have
been
new,
numerous,
and
nomadic.
Economists,
legislators,
businessmen,
and
lawyers
have
debated,
investigated,
and
reported
on
the
subject.
Out
of
the
welter
of
conflicting
views
and
con-
troversy,
involving
even
the
Supreme
Court
itself,
has
come
the
inevitable
compromise
which
reflects
successful
democracy.
A
practical
working
of
a
complex
regulatory
process
within
the
framework
of
our
constitutional
rights
and
liberties,
with
the
approval
of
all
but
the
most
extreme
on
both
sides,
now
seems
probable.
No
subject
better
illustrates
this
working
of
democracy
than
the
develop-
ments
which
have
occurred
in
connec-
tion
with
the
fundamental
question
of
whether
public
hearings
should
be
held
in
all
cases
before administrative
regu-
lations
are
issued.
The
extremes
of
the
legal
positions
have
been
taken
by
many
ultraconservative
trial
lawyers
whose
trial
experience
commenced
in
the
more
leisurely
days
of
the
nineteenth
cen-
tury,
and
the
more
radical
New
Deal
group,
who
have
enjoyed
little
if
any
trial
or
other
legal
experience,
and
who
did
not
at
first
believe
that
such
ex-
perience
-was
valuable
or
necessary
in
modern
life.
Between
these
extremes
are
found
the
vast
majority,
seeking
a
practical
solution.
In
no
legal
phase
of
this
essentially
economic
controversy
did
the
views
of
these
two
schools
clash
more
directly
than
on
the
question
of
adapting
legal
procedures
to
administrative
practice.
On
the
one
hand,
the
lawyer
schooled
in
the
technique
of
trying
a
jury
case
in
the
manner
of
a
game
of
chess
de-
sired
to
try
all
administrative
matters
in
that
manner;
on
the
other,
many
young
and
inexperienced
lawyer-econo-
mists
of
the
&dquo;reform&dquo;
school
believed
that
all
trial
methods
were
outmoded
and
that,
in
the
interests
of
speed
and
action,
administrative
orders
should
be
written
by
administrative
agencies,
based
on
their
own
investigations.
AMERICAN
BAR
ASSOCIATION’S
VIEW
The
exact
nature
of
this
controversy
can
best
be
understood
by
an
examina-
tion
of
the
provisions
and
comments
on
this
subject
in
the
original
Walter-Logan
bill
first
prepared
by
the
Special
Com-
mittee
on
Administrative
Law
of
the
American
Bar
Association,
and
the
sub-
sequent
Report
of
the
Committee
on
Administrative
Procedure,
appointed
by
the
Attorney
General
at
the
request
of
the
President.
It
will
be
remembered
that
the
bill
recommended
by
the
Ameri-
at SAGE PUBLICATIONS on December 4, 2012ann.sagepub.comDownloaded from
To continue reading
Request your trial