Administrative Common Law in Judicial Review
Duffy, John F., Texas Law Review
John F Duffy`
"There is no such thing as a common law of judicial review in the federal courts. "-Felix Frankfurter'
Justice Frankfurter wrote those words in 1944. They were part of a dissenting view to the reality of judge-made or common law then governing judicial review of federal administrative agencies. Two years later, in 1946, Congress enacted the Administrative Procedure Act (APA)2, which was designed to govern both internal agency procedure and judicial review3 and was thought to be "complete enough to cover the whole field. "4 But the enactment of the APA did little to displace the domination of common law in the field. If anything, the growth of purely judge-made law accelerated. Decades after the enactment of the APA, Professor Kenneth Culp Davis could accurately note: "Perhaps about nine-tenths of American administrative law is judge-made law, and the other tenth is statutory . . . . Most of it is common law in every sense, that is, it is law made by judges in absence of relevant constitutional or statutory provision This common-law tradition had a particularly strong hold on the doctrine governing judicial review of administrative action, an area that Professor Louis Jaffe described in 1965 (again, quite accurately) as encompassing "a whole congeries of judicial theories and practices"-a "body of power and doctrine that we would call . . . the common law of review, and which is a significant part of the `administrative law' of the jurisdiction. "6
Now, finally, this administrative common law of judicial review is beginning to abate; it is being replaced, albeit slowly, by doctrine grounded in the judicial review provisions of the APA and other statutes. This Article explains why a common law of judicial review ever existed in the first place, why it continued to grow after the enactment of the APA, why much of it is now meeting its demise, and why this change is for the best. It is a tale not only of the continuing development of administrative law doctrine, but also of the legacy of some of the oldest statutes in the Republic, of the crucible of New Deal politics that both gave birth to the APA and also nearly killed it in its infancy, and, perhaps most importantly, of the federal courts' conception of their own legitimate powers in the constitutional system.
Let us first set the stage. Justice Frankfurter's concern over "common law" in the federal courts touches upon a basic distinction in AngloAmerican law generally, one that has special importance to federal courts. Anglo-American courts traditionally follow one of two methods to decide a case. Under the common-law method, a court decides a case without guidance from any textual codification of law and policy. As Judge Posner describes it, the "essence" of this method "is that the law itself is made by the judges. They are the legislators."' A second method-one that has become increasingly important in this age of statutes-turns on the interpretation of an authoritative, extra-judicial text. In nonconstitutional cases, this method can be referred to as the statutory method. The "essence" of this method is that the legislators are the law-givers, for, at least under classical schools of interpretation, courts deciding statutory cases are bound to follow commands and policies embodied in the enacted text-commands and policies that the courts did not create and cannot change.8 And even today, while some modern theorists have sought to relax that traditional assumption, few would contend that statutory and common law are indistinguishable.
As a matter of doctrine and theory, the distinction between statutory and common law is crucial for federal courts. Well before the Court in Erie Railroad v. Tompkins9 declared that "[t]here is no federal general common law,"'a the concept of federal common law was recognized as theoretically and constitutionally troubling. As early as 1812, the Supreme Court in United States v. Hudson" held that federal courts possess no common-law criminal jurisdiction,'2 and by 1834, the Court found it "clear" that "there can be no common law of the United States" because "[t]here is no principle which pervades the union and has the authority of law, that is not embodied in the constitution or laws of the union. …