A significant portion of the work of the U.S. Courts of Appeals is reviewing decisions and rules of administrative agencies. These cases often require generalist judges to deal with highly technical and complex matters for which their backgrounds have not necessarily prepared them. Their difficulty in dealing with the cases is compounded not only by various requirements of the litigation process that frustrate complete judicial access to the facts of the case, but also by practices of the agencies and their attorneys. This article reviews various proposals to remedy these problems. It concludes that the advantages of an independent review by generalist judges outweigh any advantages of specialized courts or panels. It proposes, however, various procedural innovations that would hold the parties to a more responsible role in the process and promote more informed communication between the parties and the court.
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References
1.
1. Title 5, §706, United States Code, 1976 ed., vol. 1 (Washington, DC: Government Printing Office, 1977), p. 334 (hereafter cited as United States Code).
2.
2. Administrative Office of the U.S. Courts, Annual Report of the Director, 1981, preliminary ed. (Washington, DC: Government Printing Office, 1981), pp. 48-49 and A-2 (hereafter cited as “Director's Report”). (The “year” in question is actually the 12-month period from 1 Jul. 1980 to 30 Jun. 1981.)
3.
see also Ronald Marquardt and Edward M. Wheat, “The Developing Concept of An Administrative Court,”Administrative Law Review, 33:301 (Summer 1981).
4.
4. See generally J. Woodford Howard, Courts of Appeals in the Federal Judicial System (Princeton, NJ: Princeton University Press, 1981), pp. 87-124 (hereafter cited as Howard).
5.
5. “Case for Creating,” pp. 37-56.
6.
6. Phillips Bradley, ed., Alexis de Tocqueville, Democracy in America, vol. I (Knopf: New York, 1955), p. 290.
7.
7. Last year, the D.C. Circuit reversed only 13.5 percent of all agency cases presented (“Director's Report,” Table B-1).
8.
8. United States Code, Title 5, §706.
9.
9. Joel Yellin, “High Technology and the Courts: Nuclear Power and the Need for Institutional Reform,”Harvard Law Review, 94:489 (Jan. 1981).
10.
10. Ibid., 529-31.
11.
11. Ibid., 553-60.
12.
12. Harold Leventhal, “Environmental Decisionmaking and the Role of Courts,”University of Pennsylvania Law Review, 122:509, 550-551 (Jan. 1974) (hereafter cited as “Environmental Decisionmaking”).
13.
see also Bethuel M. Webster and William H. Hogeland, Jr.“The Economist in Chambers and in the Court,”ABA Antitrust Section Report, 50 (1958).
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14. Even now, of course, it might be suggested that judges are threatened by excessive influence from their law clerks, who do much of the research, write memoranda on the cases, and after their investment, may attempt to persuade the judge of the correctness of their position. But judges and clerks are trained in the same discipline, and though law clerks have the benefit of the most recent exposure to legal academic thought, judges have experience on their side and are able to subject the new thought as well as a clerk's legal research to the traditional tests of legal analysis. A judge will not have the same relationship with the expert aide trained in a technical discipline.
15.
15. Wade H. McCree, “Bureaucratic Justice: An Early Warning,”University of Pennsylvania Law Review, 129: 777 (Apr. 1981).
16.
16. Owen Fiss, “Foreword: The Forms of Justice,”Harvard Law Review, 93:5, 12-13 (Nov. 1979).
17.
Judge Leventhal's “hard look” doctrine was in itself subject to some hard looks in our court during the seventies. See International Harvester Co. v. Ruckelshaus, 478 F.2d 615, 650 (D.C. Cir. 1973). Judge Bazelon argued that the more appropriate standard of judicial review was the judicial establishment of procedures to ensure that the agencies proceeded to judgment only after they had critically examined and analyzed all relevant information. See David Bazelon, “Coping With Technology Through the Legal Process,”Cornell Law Review, 63:817 (Jun. 1977). The Supreme Court in Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council, Inc., 435 U.S. 519, 543 (1978), ended the methodological debate by prohibiting judicial fashioning of administrative procedure.
18.
18. 657 F.2d 298 (D.C. Cir. 1981).
19.
19. See S. 1080, §706(b), 97th Cong., 1st Sess. (1981), A Bill to Amend the Administrative Procedure Act to Require Federal Agencies to Analyze the Effects of Rules to Improve Their Effectiveness and to Decrease Their Compliance Costs; to Provide for Period Review of Regulation, and for Other Purposes. §706(b) provides: “In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.”
20.
20. See Sierra Club v. Costle, 657 F.2d at 350, n.184.
21.
21. See Daniel J. Gifford, “Rulemaking and Rulemaking Review: Struggling Toward A New Paradigm,”Administrative Law Review, 32:577, 613-617 (Fall 1980).
22.
The Code may be found in the Code of Professional Responsibility and Code of Judicial Conduct (Chicago, IL: American Bar Association, 1975), p. 58C.
23.
23. Charles Dickens, Oliver Twist, ed. C. Canby (1970), p. 15.
24.
24. This was especially true in Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981) and in Goldwater v. Carter, 617 F.2d 698 (D.C. Cir. 1979), vacated, U.S. 100 S. Ct. 533 (1979).
25.
25. The technical doctrine governing the general subject is known as Judicial Notice. See, for example, Federal Rule of Evidence 201, providing, in part, that a “court may take judicial notice, whether requested or not,” and further providing a “judicially noticed fact must be one not subject to reasonable dispute in that it is...capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.” The rule by its terms governs only certain types of facts. Rule 201 may be found in United States Code, vol. 8, p. 543.
26.
26. Code of Judicial Conduct, Canon 3.
27.
27. Swinomish Tribal Community v. Federal Energy Regulatory Commission, 627 F.2d 499 (1980).
28.
28. Cities of Anaheim v. Federal Election Regulatory Commission, 669 F.2d 799 (1981).
29.
29. See City of Charlottesville v. Federal Energy Regulatory Commission, 661 F.2d 945 (1981). The dividing line between agency “legislative facts,” not requiring empirical data but rather predictions or reasons, and “adjudicatory facts,” requiring evidence or proof, is not a bright one. Is the agency's prediction that permitting utilities to keep tax savings will mean added investment in research and development one that a court must accept? Should the court demand historical proof? Should the court refuse to give the prediction credence if there is conflicting evidence in the record regarding the effect of such a tax savings? Of course, the very essence of policymaking is predicting what kind of behavior will be effected by what kind of incentives or sanctions. If the prediction is not patently illogical, must the reviewing court accept the agency's expertise in making it, or can it demand that theory and experience be linked? See generally Kenneth Culp Davis, “Facts in Lawmaking,”Columbia Law Review, 80:1149 (Jun. 1980).
30.
30. A “proposed opinion” was employed by Judge Leventhal in Alabama Power Co. et al. v. Costle, No. 78-1006 (14 Dec. 1979), slip op. at 8. It permits the parties to work with the judge in ensuring there are no glaring misunderstandings of arguments or material, and that all voices have been heard and considered before a final opinion is issued.
31.
31. Another criticism may be that the dialogue will likely disclose which judge has been appointed to write for the panel, for not all members of the panel may care to participate in the supplemental dialogue. It may, but it is hard for me to see the great disadvantage of that. Almost all litigants in federal district courts know from the day of filing which judge is acting on their case.
32.
32. See Paul R. Verkuil, “Judicial Review of Informal Rulemaking: Waiting for Vermont Yankee II,”Tulane Law Review, 55:418 (Fall 1981).
