Friday, June 27, 2014

Pound and Frank, Part 2

Roscoe Pound, circa 1916
[This post continues a series on my book Tocqueville’s Nightmare.  The series starts here.]

The centerpiece of Roscoe Pound’s report for the ABA’s Special Committee on Administrative Law was the phrase “administrative absolutism.”  Pound defined it as “a highly centralized administration set up under complete control of the executive for the time being, relieved of judicial review and making its own regime.”  The term invoked a set piece in the lore of the common law, the attempt by Stuart kings to fasten absolute monarchy upon England and the successful defense of the ancient constitution by Sir Edward Coke.  It “at once conjures up visions of Tudor and Stuart excess and calls into play prejudices born of emotion and tradition,” a law professor observed.  As Pound boasted, it also infuriated New Dealers “very much as a red rag does a bull,” because it cast them as latter-day subverters of a cherished legal order.

To this polemical intent, Pound added a maddening refusal to say publicly whether he actually endorsed the ABA’s bill, later introduced into Congress as the Walter-Logan bill.  To an eminent tax lawyer, he protested that his committee “had nothing to with that bill” and ventured that the Board of Governors arranged for it to be after his report in ABA Reports.  “I certainly should not have thought of recommending the bill in the form in which it was appended to the report.”  Yet when Jerome Frank demanded that Pound say whether he supported the bill, the former dean obfuscated.  “Probably I do not need to repeat,” Pound declared in an open letter to his successor as chair of the ABA committee, “but out of abundance of caution, I am saying once more as emphatically as I know how that my statement that I was not the author of the bar association bill did not mean, and in my judgment cannot be taken to mean, that I am out of accord with the Committee or the Association on the subject.”

When Pound felt free to say what he actually thought should be done to reform administrative law and procedure, he stopped well short of Dicey’s insistence on de novo review by “the ordinary courts of the land.”  As he did in his St. Paul address of 1906, he opposed the granting of injunctions against administrators, because it would result in “a paralysis of administration.”  De novo review, whether in an equitable action or a statutory appeal, meant “you have to take the testimony all over again, and do over again what has already been done administratively.”  In his St. Paul address, Pound identified appellate courts’ excessive granting of new trials as one of “the causes of popular dissatisfaction with the administrative justice” in the United States.  In 1938 he objected to the rehearing of administrative disputes.  “There comes a time when we should stop reviewing facts,” Pound told a congressional committee.  “So much delay is involved by multiplied appeals that, if we are assured there really has been a determination of the facts,” we did not need to substitute “the judicial tribunal for the administrative tribunal.”

Further, Pound thought that review boards created within an agency, as proposed in the ABA bill, could correct “obvious abuses now existing perhaps as well as any plan which may be devised.”  When a member of his committee objected that the reviewing officials would “be influenced by, if not controlled by, the opinion of the Executive heads of the Department or Commission appointing them,” Pound was not dissuaded.  The risk of bias was offset by the likelihood that the review boards’ findings would give agency chiefs and reviewing courts a better view of the basis for the disputed orders than did the “heterogeneous combination of reports and papers” that passed as a record in many administrative proceedings.

The change Pound most unequivocally sought was quite modest and in line with his longstanding approach to law reform.  In his St. Paul address, he claimed that the procedural shortcomings of the common-law courts had driven Americans to seek “justice without law.”  In 1938 he thought that procedure also explained the rise of administrative absolutism.  Too often, he maintained, those who would overturn an administrator's ruling had to negotiate a bewildering maze of common law writs, costly injunction suits, and statutory appeals.  The chances of prevailing were so uncertain, thanks to the “technicality, confusion, delay and expense in review procedure,” that clients looked not to the law but “political influence” for relief.  Adopt simple statutory appeals from the agencies, Pound argued, and lawyers could go to the courts.  The courts would insist on procedural fair play within the agency.  Procedural fair play within the agency would make frequent judicial review unnecessary.

Thus, even Pound fell in line with the procedural notion of the rule of law.  Although this discovery dispatches the “about-face” narrative, it raises a new question.  If Pound and the New Dealers agreed on a procedural notion of the rule of law, what were they fighting about?  The answer lies in the politics of administrative law in the late 1930s.

[The series concludes here.]

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