Ernest Gellhorn - Administrative Law and Process in a Nutshell, 5th

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JESSE H. CHOPER

Professor of Law,
University of California, Berkeley

DAVID P. CURRIE

Professor of Law, University of Chicago

YALE KAMISAR

Professor of Law, University of San Diego
Professor of Law, University of Michigan

MARY KAY KANE

Chancellor, Dean and Distinguished Professor of Law,
University of California,
Hastings College of the Law

LARRY D. KRAMER

Dean and Professor of Law, Stanford Law School

WAYNE R. LaFAVE

Professor of Law, University of Illinois

JONATHAN R. MACEY

Professor of Law, Yale Law School

ARTHUR R. MILLER

Professor of Law, Harvard University

GRANT S. NELSON

Professor of Law, University of California, Los Angeles

JAMES J. WHITE

Professor of Law, University of Michigan

IN A NUTSHELL

Fifth Edition

By

ERNEST GELLHORN

Late Foundation Professor of Law

George Mason University

RONALD M. LEVIN

Henry Hitchcock Professor of Law

Washington University in St. Louis

Mat #40111872

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ISBN13: 9780314144362

ISBN10: 0314144366

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Ernest Gellhorn, the author of the first edition of Administrative Law and Process in a Nutshell and co-author of all subsequent editions, passed away in May 2005. At that time, half of the chapters in the book had been revised for this edition, and Ernie had approved their contents after contributing his suggestions. All of the chapters, however, contain ideas, explanations, and turns of phrase that originated with him. His insights into administrative law, his worldly perspective, and his habitual clarity of expression will, therefore, animate these pages for years to come.

Ernie commanded broad respect as a professor, law school dean three times over, managing partner of a major law office, and leader in the administrative law bar. His familiarity with the worlds of both scholarship and practice enriched his writing and caused his views to be widely sought out. And his independence of mind, generosity, and good humor made him a delightful co-author. It was a privilege to work with him, and this edition is respectfully dedicated to his memory.

R.M.L.

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IN A NUTSHELL

Fifth Edition

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Administrative agencies usually are created to deal with current crises or to redress serious social problems. Throughout the modern era of administrative regulation, which began in the late nineteenth century, the governments response to a public demand for action has often been to establish a new agency, or to grant new powers to an existing bureaucracy. Near the turn of the century, agencies like the Interstate Commerce Commission and the Federal Trade Commission were created in an attempt to control the anticompetitive conduct of monopolies and powerful corporations. The economic depression of the 1930s was followed by a proliferation of agencies during the New Deal which were designed to stabilize the economy, temper the excesses of unregulated markets, and provide some financial security for individuals. Agencies were also established or enlarged in wartime to mobilize manpower and production, and to administer price controls and rationing. The development of new technologies, ranging from radio broadcasting to air transportation to nuclear energy, often led to creation of new government bureaus to promote and supervise these emerging industries. In the 1960s, when the injustices of poverty and racial discrimination became an urgent national concern, the development of programs designed to redress these grievances expanded the scope of government administration. More recently, increased public concern about risks to human health and safety and threats to the natural environment have resulted in new agencies and new regulatory programs.

The primary reason why administrative agencies have so frequently been called upon to deal with such diverse social problems is the great flexibility of the regulatory process. In comparison to courts or legislatures or elected executive officials, administrative agencies have several institutional strengths that equip them to deal with complex problems. Perhaps the most important of these strengths is specialized staffing: an agency is authorized to hire people with whatever mix of talents, skills and experience it needs to get the job done. Moreover, because the agency has responsibility for a limited area of public policy, it can develop the expertise that comes from continued exposure to a problem area. An agencys regulatory techniques and decisionmaking procedures can also be tailored to meet the problem at hand. Agencies can control entry into a field by requiring a license to undertake specified activities; they can set standards, adjudicate violations, and impose penalties; they can dispense grants, subsidies or other incentives; they can set maximum or minimum rates; and they can influence conduct through a wide variety of informal methods.

However, these potential strengths of the administrative process can also be viewed as a threat to other important values. Administrative flexibility may simply be a mask for unchecked power, and in our society unrestrained government power has traditionally been viewed with great and justifiable suspicion. Thus, the fundamental policy problem of the administrative process is how to design a system of checks which will minimize the risks of bureaucratic arbitrariness and overreaching, while preserving for the agencies the flexibility they need to act effectively. Administrative law concerns the legal checks that are used to control and limit the powers of government agencies.

Moreover, continued exposure to the same issues may lead not only to agency expertise but also to rigidity and ineffectiveness. Indeed, scholars and other critics have identified a wide variety of causes for regulatory failure: the basic theory of the regulatory program may be wrong, or the state of knowledge not adequate to support wise decisions; there may be a mismatch between the regulatory objective and the technique chosen to achieve it; the agency may be unduly influenced or captured by a powerful constituency group; agency officials may be incompetent or corrupt or lack incentives to produce quality work; and regulatory programs may simply be politically unacceptable in a particular time and place.