TAFT LAW SCHOOL

LAW AND THE LEGAL SYSTEM

An Introduction

Samuel Mermin
Emeritus Professor of Law
University of Wisconsin

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enrolled at Taft Law School and may not be reproduced.

January 2009

Comments by Taft Law School

Law and the Legal System (An Introduction) was originally published in
1973 and was most recently updated in 1982. It was first adopted by Taft as
the primary text for its Introduction to Law course in 1984. After over a
quarter century of use by law and political science students at nearly every
elite school in the United States it was taken out-of-print by the publisher in
2001.
In 2001, and in the years since, we have conducted exhaustive searches to
locate a replacement text of equal or greater quality which address the
learning objectives of the course. These searches have proven unsuccessful.
While certain portions are somewhat dated, the sections relevant to the
Introduction to Law course are as valuable today as they were in 1982.
As a result we contacted the copyright holder, Professor Mermin, and
entered into a licensing agreement that allows us to re-produce the text for
the exclusive use of our students.
This material is provided at no cost to all students enrolled in the
Introduction to Law course. We have elected to only include as required
reading pages 1 through 138. The other pages of the text have been omitted
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LAW AND THE LEGAL SYSTEM

An Introduction
Second Edition

SAMUEL MERMIN
Emeritus Professor of Law
University of Wisconsin

Little, Brown and Company

Boston and Toronto

Copyright 1982 by Samuel Mennin

All rights reserved. No part of this book may be reproduced in any

(onn or by any electronic or mechanical means including infonnation
storage and retrieval systems without permission in writing from the
publisher, except by a reviewer who may quote brief passages in a review.
Library of Congress Catalog Card No. 81-83102
Second Edition

ALP
Published simultaneously in Canada
by Little, Brown & Compan)' (Canada) Limited

Printed in the United States of America

Chapter 1
Some General Observations
on Law and the Legal System

A.

The LtrUJ-in-Society Perspective

People specializing in a particular study area tend after a time to think

of their area as being at the center of the universe. You have perhaps
seen the humorous drawing of a New Yorker's view of the United
States in which the eastern seaboard dominates the map, while the
Midwest, mountain states, and Far West are an almost undifferentiated
glob of shrunken territory off to the left. When your life is bound up
with the law, you may tend to think of it as hovering over everything
else, like some "brooding omnipresence in the sky."
But if you were a student of society as a whole, bent on assessing
the roles of all factors in social life, law would assume a more subordi
nate role. You would tend to think of society as molding the law. You
would tend to say that society shapes people's attitudes and ideals,
while these in turn shape the kinds of conduct ("law-abiding" or otherwise) in which people engage and the kinds of COUTtS, legislatures, and
other legal institutions we have. If you were a Marxist sociologist you
would lay particular stress on how legal and other aspects of the society are influenced by the "means of production" and economic class
interest.
Even the non-Marxist, however, recognizes the vital role of economic interest and the material conditions of life in influencing the
law. The Supreme Court itself can be cited on this point. In 1943,
when the Court was dealing with a damage suit by an injured railroad
worker who (the railroad argued) had "assumed" the risk of injury on
the job, the Court discussed the development, in the preceding century,
of this "assumption of risk" doctrine. Recognizing that the doctrine
was based on a judicially implied provision in the employment contract, the Court said the doctrine was "a judicially created rule which
1

1.

Some General Observations on Law and the Legal System

was developed in response to the general impulse of common law

courts at the beginning of this period to insulate the employer as much
as possible from bearing the 'human overhead' which is an inevitable
part of the cost - to someone - of the doing of industrialized business. The general purpose behind this development in the common law
seems to have been to give maximum freedom to expanding industry.'"
Many have agreed with this assessment. 2
Or consider the following history of judicial interpretation of an
insurance policy clause. Not long after invention of the airplane, an
exclusion clause under which the insurance company was not liable
for injuries or death resulting from the policyholder's "participation
in aeronautics" was often written into accident and life insurance polio
cies. In the 1920s and early 1930s, court decisions upheld the inclusion
of passengers within the exclusion clause; an individual had, by virtue
of being a passenger, "participated" in aeronautics . But a shift in judicial opinion to the opposite view occurred in the next two decades.
Why? The courts were simply taking account of the enormously expanded role of aviation since the early cases, and the consequently
broader social impact of adverse decisions on the status of passengers.
A court in 1942 put it this way: .. 'Participating in aeronautics' in 1913
is far different in its meaning than is 'participating in aeronautics' now
or in 1929. . . . The law is a living thing that must keep [pace] with
the people and conditions it regulates:"
On a broader scale, the fact that one "can plausibly correlate factors in the material environment in America with developments in
American law, law enforcement, and public attitudes towards law'" is

I. Tiller v. Atlantic Coast Line RR. Co., 318 U.S. 54. 5859 (1943).
2. Among those works suggesting a similar explanation of the "assumption or
risk" doctrine - or of a 5ubdoctTine, the "fellow ~eT\'ant rule" (under which the
employee was said to have impliedly assumed the risk of injury by a fellow employee's negligence) - aTe Lev}', The Law of the Commonwealth and Chief Justice
Shaw 178181 (1957); Bohlen. Voluntary Assumption of Risk. 20 Han'. L. Rev. 14.
31 (1906); Friedm;;m & I...."ldinsky. Social Change and the Law of Industrial Accidents,
67 Colum. L. Re\,. 50, 51-58 (196;). For opposing arguments see Pound, The Eco
nomic Interpretation of the Law of Torts. 53 Han'. L. Rev. 365. 373-380. 38~ (1940):
Burdick, Is Law the Expression of Class Selfishness? 25 HaT\'. L. Re\,. 349, 3543il
(1912).
3. See, e.g .. Bew \'. Travelers' Ins. Co .. 95 N.J.L. 533. 112 A. 859 (1921); Travelers'
Ins. Co. v. Peake. 82 Fla. 128.89 So. 418 (1921); Meredith v. Business Mens Accident
Assn .. 213 Mo. App. 688, 252 S.W. 976 (1923); Head v. New York Lie Ins. Co., 43
F.2d 517 (10th Cir. 1930).
4. Wells v. Kansas City Life Ins. Co .. 46 F. Supp. 754, 758 (D.N.D. 1942), alld.
133 F.2d 224 (8th Cir. 1943). For a summary of the development of the law in these
insurance cases, see Annot .. 45 A.L.R.2d 462 (1956).
5. Auerbach, Garrison. Hurst & Mermin. The Legal Process 85 (J96J). The
authors go on to say (at 85-86): "For instance, the fact of abundant land permitted
a legal policy of liberal disposition of the public domain; led to habits of waslefuJ-

A.

The Law.inSociety Perspective

widely accepted. This social environment of law, however, actually

comprehends far more than material conditions. Other influences are
social institutions such as educational and religious institutions, the
family unit, unions, corporations, trade associations, fraternal organi.
zations, neighborhood associations, political parties, pressure gtoups,
and lobbies of all kinds. Further, the power of tradition, habits, ideas,
and ideals - a force often identified with a general contemporary
"climate of opinion" - is a weighty aspect of law's environment. Such
factors as human inertia, gteed, altruism, prejudice, and ignorance,
and sheer accident also should not be ignored.
The significance of these ever.shifting social factors was epitomized in 1881 on the first page of Holmes's The Common Law. The
book was one of the first attempts to create a unifying perspective on
the mass of technical, seemingly inconsistent, and confusing doctrines
in Anglo.American judgemade law. The often-quoted passage reads:
The life of the law has not heen logic: it has heen experience. The felt
necessities of the time, the prevalent moral and political theories, intui
lions of public policy, avowed or unconscious, even the prejudices which
judges share with their fellowmen, have had a good deal more to do
than the syllogism in detennining the rules by which men should be
governed. The law embodies the story of a nation's development through
many centuries, and it cannot be dealt with as if it contained only the
axioms and coronaries of a book of mathematics.

Yet, after all this has been said, it remains true that the "law"
blade of the lawsociety scissors must be reckoned with. Among other
ness, ultimately requiring legislation on conservation; and promoted an American
tendency to thumb one"s nose at Jegal authority (one could. if necessary. mo\"e on).
A difference in the availability of water, as between the arid western states and the
easlern Slales, correlates with clear differences in the legal doctrines governing the
use of water in the various Slates. Although the Supreme Court held in 1825 that
the federal admiralty and maritime jurisdiction extended only to tidewater, it over
ruled itself in 1851, recognizing explicitly that the effects of the invention of the
steamboat and seulement of the Mississippi \'a11e)' upon commerce on navigable
streams made it necessary that the federal jurisdiction apply to all na"igable \\'3lers.
Technological change iII such fields as printing and telegraph), produced new legal
problems. in areas of trademark and copyright, libel, and freedom of speech. Urban
ization. the coming of the automobilt-. mass production, meant new problems for
legal solution, and new doctrines in auto negligence law. legislation on health. safet)"
fair dealing, employer-employee relations, monopolies. and man)' other SUbjects.
Technological change also affected law enforcement: it made enforcement in some
ways more difficult (e.g., the auto provided a fast means of escape) but in m::my ways
easier (officials had not only fast transport and quick communication, but many
scientific weapons of crime detection)". For concise elaboration of the dependent
aspect of the role of law, see Hurst, The Growth of American Law 3-19 (1950).
6. The factor of "drifl and inertia," not as commonly noticed as the others
listed here, has been emphasized by Hurst. See, e.g., Hurst, Law and Social Process

I. Some General Observations on Law and the Legal System

things; pressures are exerted upon courts by the intellectual force of

legal precedents and ideas, their logical implications and analogies,
the tradi tional legal ways of approaching problems, and the tradi tional
legal notions of justice . These may not have been simply the product
of social forces. And they may block or impede, temporarily at least,
social forces pushing in an opposite direction (though this effect is mitigated by the ambiguities of principle and competition among principles, precedents, analogies, and maxims in the judicial arsenal).Furthermore, laws and judicial decisions - in spite of well-known
exceptions - do have tangible social consequences that otherwise probably would not occur. It can hardly be denied that the Supreme Court
decisions on abortion, school segregation, affirmative action, criminal
procedure, and obscenity; or congressional statutes on welfare, labor
relations, taxes, government spending or wage-price-rent controls; or
executive decisions on such matters as the Vietnam War (coupled with
court decisions not to interfere) have substantially affected people's
lives.'
Thus a beginner in the study of law should recognize the significant impact of such decisions and statutes while at the same time understanding that the most common mistake made at that stage of study
is to forget the social setting of the law - this in teraction between
society and law. Indeed, such forgetting has even been charged against

in United States History 6375 (1960); Law and Social Order in the United States
6367, 206213 (1977).
7. Included in this "legal" world is the intellectual and charismatic force exerted by particular individuals - the "greats" among the judges, legislators. admin
istrators, and advocates.
8. This is the sort of thing that Roscoe Pound discussed (sometimes, I think,
in exaggerated fashion) in lenns of "the tenacity of a taught tradition," "received
ideals" of rightness and wrongness, and "recei\"ed techniques" of utilizing "principles"
to "bring about a body of logically interdependent precepts." See Pound, supra n.2.
9. For exposition of the point in the parenthesis, sec Chap. 4 herein under A.
The rest of the material in the paragraph reflects a familiar "cultural lag" idca:
The ability of new social forces to supplant existing legal rules is diminished by the
sticky persistence of the old rules, assisted by COUrls whose interpretations of com
mon law, statute, or constitution are initially shaped more by [he old order than
tbe new. Also, the mere attainment of a legal change - even one that is relarively
inelfectj\'e - has sometimes defused the social and political forces responsible for the
change. See Tushnet, Commentary. Perspectives On the Development of American
Law, 1977 Wis. L. Rev. 81, 102-105. And survival of some rules and traditions may
be due not to their acceptability to dominant social groups but to their relation to
other rules and traditions that do have such acceptability. Nelson, Legal History.
Ann. Survey Am. L 625, 639640 (19781974).
10. For realistic details on the striking impact of a number of Burger Court
rulings on personal rights (indigent misdemeanants' right to counsel; hearings with
procedural safeguards for alleged probation and parole violators; severe limits on
death penalty; limits on involuntary commitment of mentally ill; abortion rights).
see Choper, Judicial Review and the National Po1itical Process 108-122 (1980).

B. Functions of Law

respected legal historians." One mode of accommodating these inter

acting elements is to restrict to "short-term" periods any" dominating
role of the "law" element. '2 Another is to say that "the law . _ . was
acted upon by other social forces mOTe often than acting upon them
. . . its role has been much more to organize, channel, legitimize and,
in a substantial measure to redirect, the course of changes that started
outside the law" (emphasis added).'3

B.

Functions of Law

Let me now explore one general aspect of this relation: What does law
do for people in our society - or, putting it in terms of what the legal
agencies are supposed to do or are trying to do (sometimes successfully),
what are the social functions of our law?
You probably think first about the dispute-settling function. We
do tend to think about the courts and their business of settling disputes. These may be disputes between private parties, or between a
private party and a government unit or official, or between different
government units or officials. Many government administrative agencies also engage in adjudicative dispute-settling. But it is worth remembering that private individuals functioning in the area of labor
arbitration and commercial arbitration already account for a larger
number of dispute settlements per year than do all the courts of the
nation. Here too, however, the courts playa role - they can be called
on to enforce the arbitration award, and sometimes to enforce an agreement to arbitra teo
Another function we tend to think of right away is maintaining
II. Thus. Friedman, A History of American Law (1973) has been laken to task
for its stated "jew of law (at 10) as a "mirror of society" or as "molded by economy
and society." For criticism based on the book's relative neglect of social factors other
than economic. of "autonomous" and "ideological" aspects of law, and of the recip-.
rocal effects of law on society, see Tushnet. supTa 0.9. See also book reviews by
Presser. 122 U. Pa. L. Rev. 217. 225228 (1973). and While. 59 Va. L. Rev. 1130.
1134-1135. 11381141 (1~73). The economic class emphasis in Horwitz. The Trans
formation of American Law, 17801860 (1977) has also been subjected to criticism
for too narrow or doctrinaire a view of legal history. See reviews by Reid, 55 Tex. L.
Re\,. 1307. 13101321 (1977); McClain. 68 Calif. L. Re\,. 382 (1980); Gilmore, 86 Yale
LJ- 788. 79379i (1977); Smith. 1977 Wis. L. Rev. 1253. 12631276; Bridwell. 53 Ind.
L.J. 449 (1978). The "ruling class domination" hypothesis is further criticized in
Hurst. Old and New Dimensions of Research In United States Legal History, 23
Am. J- Legal Hist. I. 14,19 (1979); Pound. Interpretations of Legal History. chap. 5
(1923).
12. E.g.. Tushnet, supra n.9 at 105; Pound, supra n.2 at 366.
13. Hurst. supra n.5 at 4, 9.

I. Some General Observations on Law and Ihe Legal System

order, through the bulk. of criminal law, against violence or aggravated

harm to persons or property, by the threat of the penalties of impris.
onment and/or fines. This of course includes the policing function as
well as the court's role in trials and sentencing, and the operations of
other officials such as prosecutors and parole and probation personnel.
Maintaining order also involves protection (through sedition, treason,
and related laws) against that extreme threat to order, the violent
overthrow of government. Thus the law legitimates certain uses of
force by government but not (save for exceptional circumstances, such
as legitimate selfdefense) by private parties.
But there is much more to our legal system than settling disputes
and maintaining order. For one thing, the legal system constitutes a
framework within which certain common expectations about the trans
actions, relo.tionships, planned happenings, and accidents of daily life
can be met (and this force for predictability and regularity can itself
be viewed as a species of maintenance of order.)" We expect that our
customary ways of behavior will be facilitated and not disrupted by
law without strong reason; we expect that those who have suffered
personal injuries - particularly those who were without fault - will
be compensated for their injuries under the laws of tort; that those
who have made promises will be held to their promises (or, if not, be
required to make recompense) under the laws of contract; that those
who own property can get the law to enforce their expectations that
they have exclusive rights in it and are free to dispose of it as they wish.
All of these expectations have to be somewhat qualified since the rights
involved - especially those of property - have been subjected to
conditions and exceptions. That is, the nature of the expectations is
partly a product of conditioning by the legal system, thereby illustrat
ing what I referred to before as the interaction of law and society.
In both constitution and statute there are functions of yet another
sort: provisions aimed at securing efficiency, harmony, and balance in
the functioning of the govemment machin.ery. Here I am thinking of
the constitutional separation of powers by which specific kinds of
power arc allocated to specific branches of government with an attempt
to avoid undue concentration in anyone branch. And I think of other
provisions for planning the affairs of government - statutes like the
Full Employment Act and government reorganization acts - and the
fiscal planning represented by budgets for the raising (taxation, bor
rowing) and spending of public money. I think of a different kind of
14. One of the ideas stressed by Professor Lon Fuller was that the Jaw was
simuhaneously a means of social control and a means of facilitating human inleraction and [he realization of reciprocal expectancies. FuJler. Law as an Instrument
of Social Control and Law as a Facililation of Human InLeraction, 1975 RY.C.L.
Rev, 89.

B. Functions of Law

planning, too, exemplified by zoning and other land use controls, COn
servation laws, and environmental protections. I think also - because
the legal machinery requires maintaining legal skills for its mainte
nance - of provisions governing the qualifications of lawyers, judges,
and other government officials for their respective vocations. There
are, moreover, measures that build into the system agencies to make
continuing assessments and proposals for improvement of the systeme.g., the state legislative councils and judicial councils, the commis
sioners on uniform state laws, the federal judicial conferences, and
the Administrative Conference of the United States.
In the Constitution can be seen another vital function of our law:
protection Of the citizen against excessive or unfair government power.
I refer mainly to the Bill of Rights - to such basic rights as freedom
of speech, press, and religion, the right 10 privacy and against unreason
able searches and seizure, the privilege against selfincrimination, the
right of jury trial for crime. Remember that the '"due process'" clause
has been construed by the courts to assure both fair procedure and
freedom frof1l arbitrariness in the substance of government require
ments. A standard of equality of treatment applies to the states through
the equal protection clause of the Fourteenth Amendment and is, to
some uncertain extent, applicable 10 the federal government through
the due process clause of the Fifth Amendment. Remember also that
included in the due process protection against both governments are
property rights, as well as life and liberty.
Our legal system is concerned, 100, with protecting people against
excessive or unfair private power. In addition 10 antitrust law protec
tion against private monopolistic power are a number of specialized
protections. For example, an employer's power is curbed by laws like
those compelling the payment of minimum wages, or prohibiting dis
crimination in employment, or compelling collective bargaining with
unions; a corporation's power in the sale of its securities is curbed by
SEC requirements. Analogous restrictions apply through a host of
regulatory laws and administrative commissions on both federal and
state levels.
Somewhat overlapping in function with these laws are some that
are aimed at assuring people an opportunity to enjoy the minimum
decencies of life by protecting their economic and health status. These
functions have been more prominent in the later history of our society.
I have in mind laws on unemployment insurance, social security, IIledicare, public housing, welfare, and anti poverty programs, as well as
older statutes like those on bankruptcy and garnishment. I would also
include measures for psychic health, by which I mean not only go\"eru
ment services for the poor who are mentally ill, but also measures
attempting to eliminate various external sources of psychic distress.

1.

Some General Observations on Law and the Legal System

These include laws and decisions discouraging discrimination, giving

redress for injuries to reputation and invasions of privacy, enlarging
opportunities for recreation, and reducing the poIJution of air, water,
and landscape.
One other point: Is there any sense in which it is true that law
has an ethical OT moral function? The answer, I think, is definitely yes.
Most of the functions already mentioned have a clear ethical dimen
sian. Thus, in settling disputes, the law aims at a result that is fair and
sociaIJy desirable. A good deal of criminal law carries out ethical pre
cepts of conduct - many of which are in the Ten Commandments. In
ton law, many of the principles concerning either negligent or inten
tional infliction of injury may be traced to the Golden Rule. The ob
ligation to keep one's promises is an ethical obligation. Similarly, the
agencies I mentioned as being concerned with improving the legal
system have had as goals not only increased efficiency but also more
socially desirable results. Ethical or humanitarian motivation has been
at least one of the sources of the mentioned legislation aimed at raising
the standard of living of the disadvantaged and legislation protecting
people against unfair exercise of public or private power. Much legis
lation and general legal principle uses explicitly ethical terms in laying
down standards of conduct - phrases like "good faith," "not profiting
by one's own wrong," "fair and equitable," "unjust enrichment." The
Constitution itself, as we have seen, speaks in terms of equality and
<as a judicial interpretation of "due process") fairness. Hence it is al
together misleading to say, as some have said, that legal duties have
nothing to do with moral duties.
One might, it is true, find certain dissimilarities between legal and
moral rules, e.g., in the different "Ievels" of morality sometimes em
bodied in them," or in various other respects.'" There are certainly
situations in which, it is said, a moral duty but not a legal duty exists.
For example, a blind stranger is starting to cross the street. You are
beside him and without harm to yourself can avoid his walking into
an automobile by simply grabbing his arm. You don't do so, and he
is injured. Generally in America the law says you are not liable for
damages. Your inaction in this circumstance was, legally, not "negli.
gence." The court might say: You had an ethical or moral duty but
not a legal duty. But this does not mean that the law is here indifferent
to ethical or moral duties. It means that the law here chooses a differ
ent ethical duty from that which some moralists might choose, and
does so on the assumption that its choice will better serve the public
welfare.
15. See discussion in Fuller, The Moraiil)" of Law, chap. 1 (re\', ed.,' 1969); Cahn.
The Moral Decision 3843 (1955).
16. Cahn, id. at 4349: Hart, The Concept or Law 163176 (1961).

B. Functions of Law

Thus. the judges are in effect saying: One ought not to have to
respond to damages here. because one ought not to have legal obliga.
tions that (I) strongly limit our basic ideal of individual freedom of
action (including our freedom to do nothing) by requiring affirmative
action in an emergency situation where it is not clear that the average
man would so act. especially in the absence of a known requirement to
do so; (2) are very difficult to administer because of the vagueness of
the rule and because of the difficulty arising from there being more
than one spectator On hand. i.e . which one has the duty? and if all
have. won't they get in each other's way? (3) apply in the kind of emer
gency situations where people tend to freeze Or panic. In short. the
judges are saying in this situation - and in others that could be
cited" - that it is unfair or too violative of other values to impose a legal
duty here. You may disagree with the reasoning. but you cannot say
the law is being indifferent to ethical or moral duties. In its concern
with standards of conduct. the law is honeycombed with "ought'" prop
ositions that purport to be rationally based. After all. the law is not
an end in itself; it is a means for the achievement of social ends. Even
the Sabbath. we are told. was made for man. not man for the Sabbath.
Perhaps you lend to think of a judge's decision as valuefree. i.e .
as flowing strictly and logically from the unequivocal requirements of
17. Even the duty toward truth may. in some circumstances, be rationally sacrificed in the light of other values. In criminal cases, concern for the defendant (who,
except in minor cases, is in peril of depTh'alion of his liberty) has led OUT law to
entitle the defendant to PUt the burden on the prosecution to prove its case beyond a
reasonable doubt, even when he and his lawyer know he is guilty; i.e., the defendant
is entitled to lie by pleading "nol guilty." And afler an acquittal, he cannot be
subjected to double jeopardy by re-prosecution for the same crime - even if overwhelming new evidence has been discovered manifesting his guilt and the perjury of
his testimony. He could be prosecuted for the separate crime of that perjury, but not
on the basis of any part of the testimony "that related to the elemenLs of the charge
on which the acquittal was obtained. And in the civil area, most jurisdictions pTO
hibit suits for libel, malicious prosecution, or similar forts where the foundation of
the suit is the al1eged commission of perjury by the [present] defendant in prior
litigation which led to a judgment against the present plaintiff. The values of finality
in litigation - and peJce for those released by a jUdgment from entoilment in j t arc in these instances thought to override the imere5t in finding the truth." Wolfram,
Client Perjury: The KUlak Commission and the Association of Trial Lawyers on
Lawyers, Lying Clients, and the Adversary System. 1980 Am. B. Foundation Research
J. 964, 976.
Another illustration involves the controverted question whether a lawyer should,
by disclosure to the court, breach his client's confidences about perjury committed
or to he committed by the client. The argument for nondisclosure has been: "If an
attorney were required (or. perhaps, even permitted) to reveal client perjury, this
would unduly chill the willingness of too many clients to confide in their attorneys
their knowledge of matters that, perhaps mistakenly, they might regard as embarrassing, illegal. dangerous, or irrelevant. Unless attorneys are able to assure their
clients that nothing they reveal to them will be used against their interesls, it is
feared that much [hal should be revealed will remain unknown to the lawyer." Id.
Further on this issue of lawyer disClosure, see Postscript herein at nn. 7679.

10

I. Some General Observations on Law and the Legal System

statute or judicial precedent. This, as Chapter 4 tries to make clear,

and as my earlier quotation from Holmes suggests, is a delusion. Of
course, the requirements of logical and factual truth are not irrelevant
to a judicial decision. The judge does want his facts to be substantiated
and wants his decision to be logically consistent with a reasonable view
of the requirements of constitution, statute, and judicial precedent.
But notice that I speak of a reasonable view of the requirements, for
they are not free from ambiguity. Within the range of freedom allowed
for his choice of that reasonable view (and I suspect it is a larger
range than you presently suppose), he is concerned - at least in diffi
cult cases - with questions like fairness and social reasonableness of
the result. This is why an astute legal scholar has said that judicial
decisions are not true or false, but rather good or bad.'s

C.

Limits of Law

Given some such list of law's functions as I have set out - and other
lists could be compiled, shorter ?r longer, or couched in different categories 19 - an interesting question is, how far can these functions go?
What kinds of specific barriers have been encountered in the attempt
to fulfill these functions? What, in other words, are the major "limits
on effective legal action," to use the phrase of Roscoe Pound? By this
I don't mean legal limits like those set by the Constitution. I am concerned rather with the important nonlegal or practical limits that are
rooted, you might say, in the human condition - though I shall occasionally refer to the Constitution as well.

I.

Social Conditioning

One outer limit, of course, arises from an already mentioned fact: the
social conditioning of law. In other words, if basic socioeconomic conditions and interests have a shaping influence on the law, one cannot
18. Cohen, Ethical Systems and Legal Ideals

~2-~3

(1933; Cornell ed. 1959). A

contrary and presently distinctly minority view is Dworkin's assertion thal ('''en in
"hard cases," there is a single correct or right answer deri,'abJe from legal principles
(rather than "policies"). including. in case of ambiguities or conflict of principle.
more ultimate principles underlying the olhers and the legal system as a wlH'!e.
See text of Chap. 4 herein at nn. ::?734.
19. Thus, Professor Hurst observes that within the limits of the ideal of "con
stitutionalism," Jaw's functions in American history were (1) embodying tht. "legili
mate monopoly of force" and claiming "as a corollary. the right to apprJ.ist' lil"

C.

Limits of Law

11

expect the law to turn around and completely transcend those conditions and interests_ No one. in a society with the kind of private property substructure that America now has. expects that Congress will in
the foreseeable future pass a National Communization of Property
Act destroying and replacing tha t substructure_
This is not to say that gradual legislative restrictions on private
property rights have not occurred and will not occur_ Some of these
occurrences I have mentioned in discussing the function of law_ They
have occurred in spite of the fact that legislators' economic interest is
generally viewed as closer to that of the "Establishment" than to the
classes that were principal beneficiaries of the legislation_ The same
can be said of the role played by. and prior backgrounds of. the judges.
Paul Freund reminded us in 1949 of Supreme Court justices who on
the bench departed from views held. or probably held. in their preCourt careers. 20 More recent exam pies also can be found. 21
Yet when all such cautionary qualifications have been made. it remains true that "the business of a legal system is to make the postulates
of a society work. It would be remarkable indeed if it could be so
worked as to secure their fundamental transformation ..... Thus one
aspect of the social conditioning limit on law is that basic change in
the socioeconomic structure is. to put it mildly. neither easily nor
legitimacy of all pri\'3te forms of power," (2) emphasizing "regular and rational
procedures," as well as "some level of rationality in the substance of public policy,"
(3) "aIIorat[ing] scarce economic resources . . . by taxing and by spending" and in
directly by "public borrowing and also by the standards by which it regulated
beha\'ior (as when by setting standards for marketing food. it required a cenain
leveJ of capital investment by food dealers):' Hurst, Legal Elements in United Slates
History, in Fleming & Bailyn, eds., Law in American History 36 (1971). Llewellyn
thought that the "law-jobs" consisted of: "cleaning up . . . grievances and disputes";
"channeling conduct .. _ 50 that, negatively grie\'ances and disputes are avoided,
and, positively. men's work is geared inw team-play"; tIre-channeling along new
Hnes"; "allocation of that say which in case of doubt or trouble is to go, and, , .
the procedures for making that sayan official and binding sa y"; "producing a net
organization and direction of the work of the whole group or society, and in a
fashion which unleashes incentive"; "building and using techniques and skills for
keeping the men and machinery of an the law-jobs on their jobs and up to the jobs."
Llewellvn, On the Good, the True, the BeaUliful in Law,9 U, Chi. L. Re\'. 224. 253
(1942); The Normative. the Legal, and Ihe Law Jobs, 49 Yale L.J. 1355. 13i3HOO
(1940). Summers and Howard recognize seven functions of law: helping w (1) pro
mote human health, inchJding a healthy environment, (2) reinforce the family and
protect private life, (3) keep community peace, (4) protect basic freedoms. (5) secure
equality of opportunity. (6) recognize and order private ownership, (7) exercise
surveillance and control over persons in poSitions of power. Summers &: Howard,
La ..... , Its Nature, Functions and Limits 440 (2d ed. 1972). See also Raz, The Authority
of Law 163179 (1979).
20. Freund, On Understanding the Supreme Court 45-47 (1949). See also Croyle,
Industrial Accident Liabi1ity Policy of the Early Twentieth Century, 7 J. Legal Stud.
279 (1978).
21. See Chap. 4 herein. text at nn. 7482.
22. Laski, The State in Theory and Practice 177 (1935).

12

1.

Some General Observations on Law and the Legal System

quickly achieved through legal agencies. This is as true (1 think more

true) of drastically different legal systems - Soviet. Chinese. or Cuban.

2.

Popular Habits, Attitudes, Ideals

A second limit that comes quickly to mind is that the law dare not
get too far away from popular attitudes. habits. and ideals in the vari
ous situations that arise in everyday life (this necessity can also be
viewed as a form of social conditioning). A number of these habits.
attitudes. and ideals will be dealt with below.

a.

Racial or Ethnic Prejudices

The significance of the role of racial or ethnic prejudice in our society needs no elaboration. 23 The difficulties we have encountered in
enforcing racial desegregation have stemmed largely from strongly en
trenched popular attitudes or habits on the part of substantial seg
ments of the population. It is possible - but far from easy - for the
law to help change those racial or ethnic attitudes. 1 shall comment
later on some basis for optimism 'in this respect.

b.

Opposition to Sumptuary Restraints

Racial prejudice is of course not the only illustration of this sec

ond limit. Liquor prohibition was contrary to the entrenched attitudes
of so many people that it led to widespread violation and bigtime
racketeering. and eventually had to be repealed. But remember. in
comparing the law's retreat in the case of liquor prohibition with its
relative lack of retreat in the case of prohibiting segregation. that the
opposition to liquor prohibition was quite widespread rather than
opposition to liquor prohibition was more widespread - not con
centra ted in one geographical region of the country. Moreover.
it was not backed by the moral force of providing equality of oppor
tunity fOT a longsuffering race. Experience with marijuana prohibition
seems to be developing in a fashion somewhat resembling the experi.
ence with liquor prohibition: Penalties are being drastically reduced.
and ultimate legalization is probable if new evidence of the drug's
harmfulness. surfacing from time to time. proves unpersuasive.

23. See generally. 12 Iml. Encyc. Soc. Sci. 439451; 13 id. at 277282 (1968).

C. Limits of Law

c.

13

Opposition to E"cessive Rigor: The Death Penalty

Consider another example, this time from further back in history.

In eighteenth-century England, you may remember, the penalty imposed for various crimes - even the minor crimes like pickpocketing
and other petty theft - was death. In the later eighteenth century and
the early nineteenth century, as the opposition to the severity of these
penalties developed more strongly, an interesting thing happened.
Judges and juries started circumventing these penalties. The law had
diverged too much from the general attitudes of the people. So judges
interpreted the statutes in a very peculiar way in order to place a particular defendant out of the reach of the particular statute that, with
a normal reading, would apply to him. The jury would also come in
with strange verdicts, such as acquittals when the evidence seemed to
indicate guilt. Sometimes the jury would merely postpone the day
of reckoning. For instance, a well-known case involved a defendant
charged wi th stealing a pair of trousers, an act to which the death
penalty applied. The jury, while ultimately coming in with a verdict
of manslaughter, knew that the judge would set aside the verdict as
not making sense. A little time was gained, and this was augmented
by the uncertainty of a second prosecution?4
In our day, we have seen a rather analogous inability of the death
penalty to operate effectively - this time because a substantial segment
of public sentiment was finding the penalty too cruel not merely for
certain relatively minor offenses but for major offenses, typically mur
der. Witness the protracted delays in executions; the executive com
mutations to life sentences; the seemingly greater tendency of appellate
courts in capital cases to find that reversible errors had been committed in the trial; a seemingly greater jury tendency in capital cases to
convict of an offense less than the charged offense; the Supreme Court
of California's 1972 decision that the death penalty violated the state
constitution as a "cruel or unusual punishment"2o; and the United
States Supreme Court's decisions in the same decade.
The latter Court ruled that the death penalty was "cruel and un
usual punishment" (I) when imposed for rape of an adult woman, in
the absence of aggravating circumstances like excessive brutality or
serious, lasting injury;26 (2) when, as in the Furman case, sentencing
provisions left so much room for unguided discretion that the death
24. Hall, Theft, Law and Society 138 (1935). For various instances of circumven.
tions by judges, prosecutors, and juries, of death penalties for minor lransgTessions,
see id. at 118141.
25. California v. Anderson, 6 Cal. 3d 628. 493 P.2d 880. ceTt. denied. 406 U.S.
958 (1972).
26. Coker v. Georgia, 433 U.S. 584 (1977).

14

I.

Some General Observations on Law and the Legal System

penalty could be administered in an arbitrary or capricious way.'7 The

Court did uphold statutes thereafter enacted which supplanted wide
discretion with various standards and safeguards, but invalidated
others which rigidly made the death penalty mandatory for certain
crimes wi thout proper standards and safeguards.'.
You will note I referred to '"a substantial segment of public sentiment" being against the death penalty rather than ascribing such an
opinion to the public as a whole_ The Supreme Court's 1972 Furman
decision represents the unusual instance of a strong legal change, in an
area of controversial moral attitudes, being made by a court's invalidation of a legislative judgment even though popular sentiment for
the change does not represent a strong majority.'. The dissenters in the
case argued strenuously that the Court's about-face in its constitutional
interpretation of cruel and unusual punishment (limited though the
decision was, as I have described above) was an inappropriate, '"legislative" act - because it was in the face 'of recent as well as traditional
state and federal legislative approval of the penalty and its administration through jury discretion, and in the face of sharply divided pub.
lic opinion.

d.

Opposition to Excessive Rigor: Jury, Prosecutor,

and Police Moderation

Let me now expand on the role of the jury. The oft-noted observation that juries exert a moderating influence on the rigors of the
law seems accurate, though exaggerated. Elaborate studies by the University of Chicago Law School show that in about 17 percent of criminal cases, the jury acquitted when the judge (who had been asked by
the researchers to record his own attitude) would have convicted; and
in convictions in capital cases, the discretion whether to assess the

27. Furman \'. Georgia, 408 U.S. 238 (19i~). T\"\'o of the majority of fi\"e look the
absolUle position that the death penalty itself was "CTuel and unusual punishment."
The other three based their position on the arbitrary or discriminatory choice in
imposition of the penalty and its infrequent. hence nondelerrent, imposition.
28. The death penalty cases are treated in App. 2 herein at nn. ~40245.
29. Opinion polls on the subject have shown considerable fiuc!U3tion o\'er the
years. with a majoriry at the time of Fwman (ranging from about 50 to 5i%)
apparently supporting capital punishment for murder. Vidmar & Ellswonh. Public
Opinion and the Death Penally. 26 Stan. L. Rev. ]245. 1249-1250 (19i-:l). There are
discrepancies in percentage of support ",hen the questions are generJI. J!' Jgainst
when they pinpoint specific circumstances: and also when differenl subpop:daliom
aTe isolaled. Jd. at 1250-]255. Justice MarshaIrs concurrence in Funnan obs('rved
thJt the public is ill informed Jbout GlpilJJ punishment. and [hal if informed of ils
purposes and liabilities. a majoril), would fint! il immoral. -108 U.S. a[ 3o!.!. 363.

C.

Limits of Law

15

death penalty was exercised against the death penalty slightly more
by the jury than by the judge.'o
In recent years, the controversy over the jury's moderating, or in
deed "nullification," power in criminal cases has been most prominent
in connection with prosecutions for politically motivated crimes - e.g.,
those stemming from opposition to the Vietnam War. Defendants'
lawyers have asked judges to instruct juries that they have the power
to acquit when they have strong reasons (of conscience, let us say) to
depart from the law laid down by the other instructions. Current legal
opinion seems strongly against such a nullification instruction,3l
though in the early years of the Republic the jury was legally the final
arbiter of both the law and the facts." The Chicago research figures
previously cited suggest that the jury today in fact does exercise this
nullification power occasionally.'3 The researchers assert that "the jury
does not often consciously and explicitly" depart from the law."' One
reason may be that, in the oft.expressed view of Judge Jerome Frank,
juries often do not understand the instructions. a5
30. Ka]"en & Zeisel. The American Jury 56, 62, 436 (1966). The figures are reo
stated somewhat differently after "hung juries" (see id. at 57) are taken into account:
Concerning jury trials in aU criminal cases, the "jury is less lenient than the judge
in 3% of the cases and mOTe lenient than the judge in 19% of the cases. Thus, the
jury trials show on balance a net leniency of 16%" (at 59).
31. See Sparr and Hansen v. U.S., 156 U.S. 51 (1895); Leventhal, J. [or the
majority in U.S. v. Dougherty, 473 F.2d 1113, 11301137 (D.C. Cir. 19i2); St3te V.
McClanahan, 212 Kan. 208. 510 P.2d 153 (1973); Simson. Jury Nullification in the
American System: A Skeptical View, 54 Tex. L. Re\,. 488 (19i6); Christie, Lall..-ful
Departure From Legal Rules: "Jury Nullification" and Legitimated Disobedience.
62 Cali[. L. Re\,. 1289. 1~961305, esp. 13021305 (1974). See also Kadish & Kadish,
Discretion to Disobey 4572, esp. 6465 (1973).
For contrary views see Justice Gray's dissenting opinion in Spar!, supra at
110-177; Judge Bazelon's dis..<:.ent in Dougherly, supra at Il38-1144: Scheflin 8:
\'an Dyke, Jury N'uIJification: The Contours of a Contro\:ersy. 43 L. & Contemp.
Prob. 51 (1980); Sax, Conscience and Anarchy: The Prosecution of \\'ar Resistors.
57 Yale Rev. 481 (1968). Constitutional pro\'isions in Indiana and Maryland are
construed. \\.ithin certain limits. to gi\'e the jury the right in criminal cases to determine law as well as facts and thereby depart from instructions on the law if it
wishes to acquit. or to convict of a lesser offense. (See discussion in ScheHin &
"an Dyke, sup7'a at 79-85.)
32. See, e.g., Howe. Juries As Judges of Criminal Law, 52 Har\,. L. Rev. 582
(1939).
33. Kal\'en & Zeisel, supra n.30, point to a number of reasons, not envisaged in
the instructions, for jury \'erdicts disagreeing with whal the presiding judge's verdict
would ha\'e been. These include: unpopularity of the statute; and jury sentiments
concerning proper boundaries of self-defense, significance of the victim's own fauh,
the suffering already experienced by the defendant. or the se\'erity of the threatened
punishmenL. Mainly, the jury "yields to sentiment in the apparent process of reo
solving doubts as to evidence. The jury . .. is able to conduct its re\'olt from the
law within the etiquette of resolving issues of fact" (at 165).
34. Id. at 165.
35. Frank. Courts On Trial ll6-118. 130 (1950). His general attack on the jury
syslem (mainly in civil cases) is at 108-145. See also, on jury underslanding of the
instructions. Chap. 2 herein at nn. 173175.

16

I,

Some General Observations on Law and the Legal System

The Chicago studies also suggest the jury is a moderating force in

civil cases, Take the usual personal injury case, e,g" involving an autO
accident, where the rule is that the injured plaintiff has the burden of
proving the negligence of the defendant, The Chicago studies suggest
that the jury, in fact, in spite of this rule, tends to resolve the doubts
it has about the defendant's negligence in favor of the injured plain
tiff. I am assuming. of course, that it is a case of some doubt. It is true
that the jury still brings in verdicts against the injured plaintiff in
cases of clear absence of negligence on the part of the defendant. But
it seems that the jury tends to resolve the doubts it has in the contro
versial, fairly evenly balanced cases in favor of the plaintiff. whereas
this rule of the burden of proof seems to mean that it would have to
resolve doubts in favor of the defendant. What we mean by saying that
the plaintiff has the burden in this personal injury suit is that he has
to prove and convince by a preponderance of the evidence. (In a crimi
nal case, the plaintiff, i.e., the prosecution, has the burden of proving
its case beyond a reasonable doubt.)
Other tendencies have been found to exist in the actual, as
distinct from the theoretical. operation of juries in these personal in
jury cases. For example, there is a rule in most states to the effect that
if the injured plaintiff was himself negligent (what the law terms "can
tributory negligence") and this negligence contributed substantially to
the injury that he suffered, such a plaintiff is barred from recovery. His
own contributory negligence prevents his recovery of damages. even
though the defendant was negligent. That is a pretty harsh rule and it
doesn't even take cognizance of the relative amount of negligence as
between the plaintiff and the defendant. It simply says that if the plain
tiff's negligence also contributed to the injury, he cannot recover. A
growing number of states, following the example of Wisconsin. uphold
a more enlightened attitude based on what we call the "comparative
negligence" rule. But even in the other states the jury in fact tends to
operate on a comparative negligence basis. That is to say, what the
jury seems to be doing in a case where it feels that the plaintiff"s own
negligence contributed to his injury is this: It brings in a verdict with
reduced damages for the plaintiff rather than a verdict for the defen
dant, as would have been proper under the judges instructions. Here
is another exar.lple of the "law in action" diffe,'ing from the "law in
books."
However, you should not assume that the moderating or nullifying
role of juries in civil cases represents much greater sympathy for the
plaintiff than would be shown by the judge if he were deciding the
case, The Chicago studies show that in 80 percent of the personal in
jury cases, the judge agreed with the jury's determination as to who
should win (the same percentage as in criminal cases). And "[tJhe

C.

Limits of Law

17

judge disagrees with the jury because he is more pro-plaintiff about

as often as the jury disagrees with him because it is more pro-plaintiff."
But looking "simply at the 44 percent of the cases where both decide
for the plaintiff, we find considerable disagreement on the level of dam
ages. In roughly 23 percent the jury gives the higher award, in 17 percent the judge gives the higher award and in the remaining 4 percent
they are in approximate agreement. More important, however, is the
fact that the jury awards average 20 percent higher than those of the
judge.""
Sometimes, in criminal cases, instead of the jury the prosecutor
takes the role of potential moderator or nullifier. He too is sensitive
to popular attitudes, and he acts accordingly. Witness, for example,
the well-known reluctance to prosecute sexual behavior that violates
statutory prohibitions like those against adultery or fornication. But
failure to prosecute, or to prosecute fully (e.g., engaging in "plea bar
gaining"), is a result of many other factors as well: inadequate prose
cutorial and adjudicative resources, lack of cooperation from the
victim, availability of effective noncriminal procedures, and the sus
pecfs willingness to cooperate as an informant or witness.' 7
So, too, enforcement duties of police are moderated, generally for
quite practical reasons. SS

e.

Desire for Government Noninterference with

Privacy and with Conduct Not Injurious to Others;
the "Mill Principle"

The abovementioned fornication prohibitions (existing in less

than a third of the states) and adultery prohibitions (existing in perhaps half of the states) may be expected to dwindle still further in the
36. Kalven. The Dignity of the Civil Jury. 50 Va. L. Rev. 1055. 1065 (1964).
37. Miller. Prosecution (1969): Newman. Conviction (1966) (Part III): 2 Davis.
Administrative Law Treatise, 9:1l (2d ed. 1979); MilIcT, McDonald 8c Cramer, Plea
Bargaining in the United Stales (19iB) (chap. 2). The prosecUlor's discretion is
subject to abuse, which has usually been treated as judicially nonreviewable. though
there are some decisions pointing in a contrar), direction. 2 D.a\'is, supra, 9:6. Some,

like Kenneth Davis (id., 9: 19: 13; Davis, Discretionary Justice 188214 (1969 have
argued for fuller recognition of reviewabiJity. as well as (on the federal agency le'\'el,
at least) for greater use of prosecutorial policy statements, findings, and reasons in
making various kinds of prosecution decisions.
38. "Many persons whose conduct apparently violates the criminal law are not
arrested. In some instances this can be explained by the fact that there is no legis lath'e purpose (0 enforcing some statutes which are obsolete or drafted in o\'erly
general or ambiguous terms." There are other reasons, such as inadequacy of avail
able enforcement resources, or the use of non-arrest as a reward for information.
LaFave, Arrest 910 (1965). See id. at 6382, 492495; 2 Davis, supra n.37, 9:149:22;
Davis, Police Discretion (1975); Thomas & Fitch, The Exercise of Discretionary

18

I.

Some General Observations on Law and the Legal System

future. in line with the position taken by the influential American

Law Institute. Having sponsored research for some ten years on a
Model Penal Code. which it approved in 1962. the Institution re.pub.
lished the second part of the Code (Definition of Specific Crimes) with
revised Commentaries in 1980. Though not generally adopted as such.
the Code has influenced numerous state legislatures and courts on
many topics. as well as affecting the pending revision of the federal
criminal statutes. 30
The Code omits any prohibition against fornication or adultery.
a position which the Commentary explains in the following manner:
The Code "does not place the coercive power of the penal law behind
strictures of private morality or religious precept . . . . Punishing in
stances of private immorality can justly be regarded as an invasion of
personal liberty. . . . The amount of money available for law enforce
ment is limited. It makes more sense to concentrate on conduct directly
harmful to others than to divert attention and resources to instances
of private immorality [requiring] enforcement techniques that could
have serious implications for personal privacy." And to continue the
prohibition without effective enforcement leads to various evils like
discriminatory enforcement. official extortion. private blackmail. and
weakening of respect for law. Finally the Commentary found specious
the argument that the consensual sexual conduct in question does
cause preventable harm to others.' o
Similarly. under the Model Penal Code. "deviate" sexual inter
course (homosexual practices). regardless of the gender or marital sta
tus of the parties. "is not criminal where both parties consent, where
each is of sufficient age and mental capacity to render consent effective
and where they conduct relations in private and create no public nui
sance."" The Code does, however. prohibit certain other sexrelated
offenses.' 2
Decisionmaking by the Police, 54 N.D.L. Rev. 61 (1977). Da\"is has argued for confinement of police discretion through police rulemaking. in public procedures.
Davis, Discretionary Justice 80-96. See the interchanges between Dayis and Allen on
this. in 125 U. Po. L. Re\,. 62.1167.1172 (197619;;).
39. See I ALI Model Penal Code and Commentaries, Part Il. (ore\\."ord, p.xi
(1980).
40. [d. at 430439.
41. [d. at 363.
42. This includes prostitution and related offenses, 3 id. at 453473; ceTlain lewd
expo.<:.ures or indecencies in public, 3 id. at 4:18-453; lid. al 405-41 J; loitering in a
public place for the purpose o[ engaging in de\iaL(" sexual relations, 3 id. at 4i34i9;
sexu~:li relations involving force, fraud, or females underage or menially incapable,
J ;d. at 271105; bigamy and pol}'gamy, 2 id. at 36B39i: incest. 2 id. at 39j4~4: and
obscenity. 3 id. at 479523. The abortion prohibition (s('(' ~ id. at 424444) went b(,
yond the then existing (1962) state statut('s by permitting abortion \\herr there:' was
substantial risk that continuance of the pregnancy would grJ\'ely impair Ihe phy!'licJI
or mental health of the mother, thai the child would be born wilh gran' phY!iical

C.

Limits of Law

19

This rather pennissive attitude in the area of consensual sex conduct is a good ilIustration of a more encompassing attitude, strongly
held by large numbers of people and in even larger proportion among
young people_ I have in mind the drawing of a circle around certain
kinds of conduct as being "private" - conduct that the law should not
stick its nose into in order to promote one view of morality, or further
the defendant's own good, as distinguished from the purpose of protecting other people from hann_ John Stuart MilI expressed this quite
common attitude when he said in the first chapter of his essay "On
Liberty": "The object of this essay is to assert one simple principle,
as entitled to govern absolutely the dealings of society with the individual by way of compulsion and control. whether the means used be
political force in the fonn of legal penalties, or the moral coercion of
public opinion_ That principle is that ___ the only purpose for which
power can be rightfully exercised over any member of a civilized community, against his will, is to prevent hann to others_ His own good,
either physical or mental, or moral, is not a sufficient warrant:'43 (Crthe play, "Hair," Act I: "Kids, be free_ Be whatever you are, do whatever you want to do, just as long as you don't hurt anybody_")
Such a principle extends far beyond the field of sexual behavior.
On the basis of this principle, for instance, it could be argued that a
state could not compel a person to accept for his own good a life-preserving blood transfusion he did not want; Or compel mental health
treatment for the harmlessly insane; or compel participation in an air
raid drill, or the wearing of seatbelts by autoists and helmets by motorcyclists; or prohibit euthanasia, or attempted suicide; or prohibit gambling, prostitution, or personal use or consumption (or possession for
personal use or consumption) of alcohol, drugs (at least "soff' drugs,
such as marijuana), or obscene material; or prohibit abortions, particularly early ones_
These positions could be argued_ Whether such arguments would
or should succeed in all instances is another question_ The problem
is that the ambiguities and exceptions in Mill's "simple principle"

or menta] defects. or that the pregnancy resulLed from rape. incest, or other felonious
intercourse. Such a stature does not go far enough. in the light of the subsequent
Supreme Court decisions in Rot: v. Wade, 410 U.S. 113, and Doe v. Bollon. 410 U.S.
]79 (19i3) im.'alidating the then typical restrictive laws against abortion. The Court
treated the decision to abort as a malleT of the woman's constitutional "pri\'ac)'"
right which she is free to exercise in the first trimester of pregnancy in consultation
with her physician. The Court did rule that the state may regulate abortion in the
second trimester in ways reasonably related to maternal health; and the state ma~'
go so far as to prohibit abortion after \'iability of the fetus, except where the abortion js necessary to preserve the mother's life or heahh.
43. Mill. Utilitarianism. Liberty and R. presentati\'e Government 72-73 (E\'eryman ed. 1910).

20

I. Some General Observations on Law and rhe Legal System

make its application anything but easy. For instance, what kind and
what quantity of "harm" to others will qualify? Looking at the differ
ences in the American Law Institute's treatment of various harms sug
gests that the Institute's application of the Mill principle has been
based upon judgment, prediction, and weighing of freedom against
other values rather than upon any self-evident inferences from the
"simple principle."" Indeed, Mill himself seemed aware of some of
the possible difficulties in applying the "harm" concept,.5 and recog
nized some actual exceptions to his principle, as did his critics. 4s Yet
44. In the case of homosexuality, the Institute had to consider the relevance of
psychological harm, i.e., distress, caused to the opponents of sexual freedom from
[~e mere knowledge that private homosexual conduct was occurring without legal
hmdrance. Furthermore, these opponents could argue (as Lord Devlin of England
has argued) that there is potentially a strong threat of social disintegration created
by removing criminal prohibitions from conduct beHeved by the average person to
be immoral and disgusting. Alternatively, in the case of fornication and adultery.
one might argue that these practices cause indiTect haTm to the institution of maTriage and the family. Under the previously quoted rhilosophy of the American Law
Institute, however, all these kinds of harms do not qualify - apparently because
they are not viewed as sufficiently probable and substantial enough to justify (I) the
invasion of human freedom and privacy invoI\'ed in criminaUy punishing private
consensual conduct, and (2) certain costs attendant upon atlempted enforcement.
But some other kinds of hann - even though invohing consent and occurring in
prhate - would qualify and thus faU in the realm of prohibition. For instance, the
ALI has not suggested that our long-standing and relati\'ely uncriticized prohibitions against assaults in . . .olving mu[Ual consent (induding sadomasochistic sex practices) should be removed from the books. Nor has it been willing to decriminalize
prostitution, genera]]y a consensual and pri,ale act.
45. Mill recognized that "the mischief which a person does to himself may
seriously affect, both through their sympathies and their interests. those nearly connected with him and, in a minor degree, society at large," and that a judgment had
to be made whether the conduct had produced "definite damage, or a definite risk
of damage. either to an individual or to the public:' Mill, supra n.43 at 137. 138.
Interestingly. he couJd not make up his mind ho''''' to decide the issue of whether a
legal system that did not punish fornication or gambling should punish the pimp
and the keeper of a public gambling house. Id. at 154-155.
46. A recent critical discussion of the Mill principle, Grey. The Legal Enrorce
ment of Morality 1-35 (ABA Commission on Undergraduate Education in Law and
[he Humanities, 1980), points to a few areas of Jaw where we now ha"e. and would
want to retain, penal sanctions against mere psychological harm, i.e., distress - and
argues that this undermines the Mill principle, construed as denigrating all such
alleged harm. See for further critical discussion, ReynoldS, The Enforcement of
Morals and the Rule of Law, II Ga. L. Rev. 1325 (1977); Golding. Philosophy of
Law 54-59 (1975); Devlin, The Enforcement of Morals (1965); Hart, Law. Liberl), and
Morality (1963); Schwartz, Morals Offenses and the Model Penal Code, 63 Col urn. L.
Rev. 669. 6i5677 (1963).
In referring to Mi1l's own recognition or exceptions to his principle. I do not
mean ani)' his toleration of slate paternal intenention to protect children, the feeble
minded, and backward peoples. He thought the freedom to sell oneself inlo slavery
was properly restrained by law - because his principle was designed to presene
freedom of choice, and this purpose would be defealed by conduci precluuing
future use of that freedom. Mill, supra nAj at 157158. This category of exception
could be extended beyond slavery to situations in which the law cUTIails the freedom
of an individual to commil a serious injury against himself. such as suicide or maim-

C. Limits of Law

21

another problem is the ambiguity in the concept of "will" (in "against

his will"),47 as well as in the concept of "others" (in "harm to others")
as exemplified in the abortion problem.' s
Still, the Mill principle's thrust in the direction of an individual's
private conduct being free from the state's moralistic strictures is an
appealing one in our time. "For more than a decade there has been a
Privacy Revolution underway in the United States. . . . [T]he Ameri
can legal structure has reacted with relatively incredible speed to what
ten years ago was an iIIdefined anxiety about individual privacy. During this period, for example, Congress has enacted three major statutes
primarily directed to matters of privacy and has included dozens of
individual provisions relating to privacy in other statutes; the states
also have enacted hundreds of privacy statutes during this period.""
In the area of criminal law, although state legislatures have not shown
as much impetus for change as the American Law Institute (in its omis
sion of fornication, adultery, and homosexual practices), there has been
a tendency to omit fornication and adultery as crimes from recent
modifications and recodifications of state penal codes,50 abortion laws
have followed the liberal line laid down by the Supreme Court, the
severity of marijuana offenses has been lessened through lowering the
level of offense and/or the penalties, and many motorcycle helmet laws
have been repealed.
Turning from legislative judgments on desirable policy to judicial
judgments on whether to strike down the legislative judgment as unconstitutional: 51 It is still true that state courts are finding a sufficient
ing-any action that would destro), or greatly impair subsequent freedom of choice.
MotoTcyc1e helmet laws or laws prohibiting suicide or attempted. suicide fall inlO
this category. but the limits of the category itself aTe in defined. Should we, for
instance. pTOhibit dangerous mountain climbing or cigareue smoking? Se(' Hughes,
The Conscience of (he Coun 87 (1975).
47. Might some situations. e.g.. where an indi\'idual is contemplating Silicide. be
said to involve an impainnent of ....... m.. so that he is incapable of making the kind
of free choice that Mill envisaged? See Hughes. id. at 85.
48. Is a non.viable fetus to be included in "others"? It would not. if the Suo
preme Courl'S 1973 abortion decisions were to be followed. See supra n.12.
49. Mil1cr, The Privacy Revolution: A Report From the Barricades, 19 \\'ashburn L.J. 1 (1979).
50. See I ALI, supra n.39 .( 439.
51. It is important to undersund the difference in the nature of the legislative
as against the judicial judgment. A legislator might reasonably disagree with the
ALI's version of the MiH or "liberty principle," viewing it as going too far in the
direction of liberty or underestimating the "harm" from decriminalization. Another
legislator might reasonably perceive the Code as not carrying the libeny principle
far enough in some areas, or o\"erestimaling the harm from decriminalization in cer
tain other areas, e.g., prostitution and abortion. But the judgment of a court reo
\.iewing a statute embodying such proVisions is not in terms of whal the COllrt would
rule if it were a legislator. The decision is based on whether the rights in the Can
stitution. such as privacy, stand in the way of the particular legislatiye judgment.
A judge may answer that question in the affil'matin even though hl' thinks the law

22

I.

Some General Observations on Law and Ihe Legal System

social hann.prevention basis to uphold motorcycle helmet laws, fornica

tion and adultery laws, and statutes prohibiting possession and consumption of liquor and drugs (including marijuana). Persistent challenges have been occasionally successful, however: A 1977 New Jersey
Supreme Court decision invalidated the fornication statute on grounds
of privacy invasion and insufficient serving of alleged social harm-prevention purposes;.' a 1975 Alaska Supreme Court decision held that a
drug law as applied to possession of marijuana by adults at home for
personal use violated the state constitution's privacy provision;" and
a minority of motorcycle helmet cases find an inadequate relation of
the law to the public's safety and health (as distinct from the individual motorcyclist's)."
The Supreme Court's decisions in the last two decades have supported such challenges by revitalizing a constitutional right of privacy,
thus giving new life to the Mill principle. The decisions principally
involved here are those invalidating laws against use of contraceptives
by married persons."' laws imposing certain restraints on the distribution of contraceptives to unmarried persons, minors, and others,, 6 laws
against most abortions' 7 (including some cases subsequent to the basic
represents desirable poliC}'; and he may answer in the negative even though he disagrees with the legislative policy. The problem is complicated by the [act that the
Court has evoh'ed a tougher standard for review, under the due process clause, in
the case of "fundamental" rights - i.e., in the case of such a Tight. the statutory
invasion thereof would have to be necessitated by a compelling state inlerese On
standards for re\'iew under the due process clause, see Chap. 5 herein at nn. 63-68.
The problem for the legisIa ture as distinct from the coun (though the court's
problem of constitutional interpretation under the tougher standard of l'e\'iew gets
dose to the legislature's problem) is often this: Should a humane democralic Slate
impose the Jibeny.in\'ading sanctions of criminal law upon allegedly immoral condUCl that substantial segments of the public (in the case of abonion. approximillely
half or more of the pubJic, at least as to firsttrimester pregnancies) sincerely and
reasonably believe to be insufficiently harmful to others and moral1y proper?
52. Slate \', Saunders, 75 N.J. 200, 381 A,2d 333 (197;); Notes, 27 Buffalo L. Re\".
395 (1978); 77 Mich. L. Re\. 252 (1978). But constitutional anacks on prostitution
statutes on privacy grounds ha\'e failed. See Note, 58 Wash. U.L.Q. 439 (1980).
53. Ravin v. Stale. 537 P.2d 494 (Alaska. 1975). See Annol.. 96 A.L.R.3d ~~5
(1980).
54. People v. Fries. 42 III. 2d 446. 250 N.E.~d 149 (1969): American Motorcycle
Assn, v. Davids, 11 Mich. App. 351, 158 N.W.2d 72 (1968). The Michigan ca!'ie also
referred to the plivacy idea. See AnnoL, 32 A.L.R.3d 1270 (1970). More generally.
see NOle, Limiling the State's Police PO''''er: Judicial Reaction 10 John SlUart h.1 ill ,
37 U. Chi. L. Rev. 605 (1970).
55. Griswold v. Conneclicul. 381 U.s. 479 (1965).
56. Eisenstadt v. Baird, 405 U.S. 438 (1972); Carey v. Population Sen'ices 1m!..
431 u.S. 678 (1977).
57. Roe v. Wade. 409 U.S. 817 (1973). See supTa n.42 for summary. There has
been substantial criticism of the reasoning and evidence on which thl' abortion
decision was based, though not necessariJy of the result. Sec, e.g., Ely. The '-Vagcs
of Crying Wolf: A Comment on Roe v, Wade. 82 Yale L.J. 9~O (19731: Friendly.
The Courts and Social Policy: Subslance and Procedurl', 33 L'. Miami L R('\'. ~l,

C.

Limits of Law

23

1973 decisions),5. and laws against possession of obscene films, as applied to possession of films in the home, intended for viewing therein_ 5
32-39 (1978); Cox, The Role of the Supreme Court in American Government 1J3-1J4
(1976); Lusky, By What Right 15-17, 100 (1976). The companion case of Doe v.
Bolton, 410 U.s. 179 (1973) among other things held unconstitutional a state law
requiring (1) that aU abortions be performed only in certain accredited hospitals,
and that a hospital committee approve aU abortions contemplated by the hospital's
docwrs, (2) that two other doctors must first concur in the decision to abort, and
(3) that abortions be limited to the state's residents.
58. The case of Planned Parenthood of Mo. v_ Danforth. 428 U.S. 52 (1976) upheld state provisions that (1) defined viability of the fetus (in a provision restricting
abortions to those necessary for preserving the mother's life or health unless a
doctor's certification of non-Viability has been obtained) in terms of the stage of
fetal development when life may be continued indefinitely outside the womb by
natural or artificial support systems: (2) required that a woman prior to an abortion
during the first 12 weeks must certify in writing her consent to the procedure. and
that her consent is informed and freely given without coerdon; (3) required certain
record-keeping and reporting on the health facilities and physicians concerned,
irrespective of the pregnancy stage involved. But the court held unconstitutional,
provisions (I) requiring written consent of the spouse for abortion during the first
12 weeks unless a doctor certifies the abortion to be necessary to preserve the mother's
life; (2) requiring any person perfonning or inducing an abortion at any stage of
pregnancy to exercise, on pain of manslaughter penalty in case of the fetus's death,
the same professional skill, care, and diligence to preserve the fetus's health as required to preserve the health of a fetus intended to be born and not abOrLed; (3)
requiring. with respect to an abortion in the first 12 weeks of pregnancy of an unmarried woman under 18, the written consent of a parent or person in loco parentis.
unless a doctor certifies the abortion to be necessary to preserve the mother's life;
(4) prohibiting after the first 12 weeks of pregnancy an abortion technique whereby
the amniotic fluid is withdrawn and a saline or other fluid is inserted into the
amniotic sac.
However, in H.L. v. Matheson. 67 L. Ed, 2d 3BB (1981). the CoUrt upheld a st:lle
law requiring a doctor to "notify if possible" the parents of a minor upon whom
he was to perform an abortion - as applied to an unemancipated, unmarried fifteenyearold girl living with and dependent on her parents - even though the law did
not provide for a mandatory period of delay after such notification or a description
of what information the parents could supply the doctor, and allowed a pregn;;mt
minor to consent to other procedures without formal notice to her parents if she
carried the child to term.
Final1y. in Maher v. Roe. 432 U.S. 464 (1977), the Court ruled that a slate that
funded childbirth senjces for indigents could properly exclude indige11ls' 1Ion-llwrapeutic abortions /TOm public funding and could require. for medically necessary
abortions. the indigent woman's prior consent in writing and the state official's prior
authorization of payment. And even where the exclusion of public funding applied
to some medically necessary abortions (funding being restricted. under the most
extreme version of the federal "Hyde amendment," to cases where childbirth would
threaten the mother's life - thus eXc1uding abortions that threatened her physical
or mental health) the Court upheld the exclusion, in Harris \I. McRae. 448 U.S. 297
(1980).
See generally, Symposium on the Law and Politics of Abortion, 77 Mich. L. Rev.
1569 (1979); Dembitz, The Supreme Court and a Minor's AborLion Decision, 80
Colum. L. Rev. 1251 (1980): Goldstein, A Critique of the Abortion Funding Decisions:
On Private Rights in the Public Sector, 8 Hastings Const. L.Q. 313 (1981); Isaacs, Law
of Fenilit}' Regulation in U.S.: 1980 Review. 19 J. Fam. L. 65 (1980) (abortion,
contraception, and sterilization).
59. Stanley v. Georgia, 394 U.S. 557 (1969).

24

I.

Some General Observations on Law and the Legal System

(Certain other pro-privacy decisions might have been disapproved by

Mill because they involved the upholding of legal requirements
adopted to enhance a kind of privacy, as distinguished from decisions
protecting privacy against legal interference.)
It is true that the Supreme Court has steered a rather uncertain
course in the constitutional law of privacy (as Chap. 5 herein shows OI )
and has frowned on the Mill principle as such.' But its concern, and
that of other courts and legislatures, for maintaining an area of individual liberty free from legal interference reflects a public concern"
that lawmaking must reckon with if it is to be effective. This public
concern is one example of the limits I lumped together into my second
category, namely, the "popular attitudes, habits, and ideals in the various situations that arise in everyday life."

f. Desire for Other Freedoms

Obviously, the desire for privacy is not the only kind of freedom
urge that operates as a limit on law in our society. Nor is it the only
60. The Court upheld legal requirements designed (1) to permit a householder
to be free from mailings of erotically arousing advertisements (Rowan v. Post Office
Dept., 397 U.S. 728 (1960). and from uninvited house to-house solicitation by magazine salesmen (Breard v. Alexandria, 341 U.S. 622 (1951), ct. Schaumberg v. Citizens
for a Better Environment, 444 U.S. 620 (1980, and from "dirty words" broadcasts
(FCC v. Pacifica Foundalion, 438 U.S. 726 (1978)); and (2) to permil anyone to be
free from sound trucks' "loud and raucous noises," Kovacs v. Cooper. 336 U.s. 77
(1949), and from certain kinds of advertising on city bus cards, Lehman \'. Shaker
Heights, 418 U.S. 298 (1974).
61. See Chap. 5 between nn. 12 & 44. A notable pulling back on the right to
privacy ..... as the summary affinnance in 425 U.S. 90J (1976) of Doe \'. Commonwealth's
Attorney, 403 F. Supp. 1199 (E.D. "a. 1975), which had upheld Ihe Virginia sodomy
law as applied to pri\'ate consensual conduct of male adults.
62. In a 1973 obscenity case, the Court showed no sympathy for the Mill prin'
ciple (..... hich in its view meant "that conduct involving consenting adults only is
always beyond state regulation") when it said: (I) The state rna)' prohibit conduct
(even when it involves "consenting adults only") to further its legitimate imerest in
"order and morality," and "a decent society"; and to protect the "quality of life
and the total community environment" and the privacies of others, from infringe
ment by the allegedly private conduct. (2) The prohibition against exhibition of
obscene films was not rendered unconstitutional by the absence of scientific data
conclusively demonstrating that exposure to such films did harm adult men or women
or their society. The legislature could "quite reasonably" make the "unprO\'able as
sumption" that "such a connection does or might exist." (3) "The state statute
books are Teplete with constitutionally unchallenged laws against prosti:ution. sui
cide, voluntary selfmutilation. brutalizing 'bare fist' prize fights . . ."; and the
Court cited language in prior Court opinions supporting legitimacy of la\\'s against
various other consensual activities, including fornication and adultery. Paris Adult
Theatre I \'. Slaton, 413 U.S. 49, 5863, 6869 (1973).
63. A 1968 Harris poll showed "a continued rise in public concern about indio
vidual privacy, and a belief in the existence of a threat 10 privacy. as well as a
need for greater protection." MiBcr. supra n.50 at I.

C.

Limits of Law

25

attitude that has been given constitutional protection. The Constitu

tion protects, against undue governmental invasions, one's life, one's
liberties, and one's property, as well as assuring equal protection of
the laws. Should government press too far against such ideals as free
dom and equality, it will be reminded through popular resistance, if
not through court decision, that these ideals set limits to the law's
possibilities. Unfortunately, it would unduly lengthen this book to
explore, as I have done in the case of "privacy,"" some court attitudes
on such limits. 65
g.

Attitudes on Importance of "Fault" or "Blame"

There are some additional attitudes or ideals that seem to me so

pervasive as to necessarily put limits on the lawmaker, though they are
so obvious as to perhaps escape attention. One is the general acceptance
of the notion of "fault" or "blame," and the feeling that the innocent
should be treated differently from those who are at fault or worthy of
blame. This point may seem self-evident, but you will encounter many
instances of difficulties arising from its neglect.
As one example, consider the proposals made by some responsible
students of criminal law that the' insanity defense should be abolished
because of difficulties in interpreting and administering the defense.
They point to the fact that psychiatrists are in disagreement on the
issue of insanity, with many of these critics asserting that the psychia.
trists are no better equipped than the layman to answer the kinds of
questions put to them as witnesses in an insanity case; that some de
fendants take unfair advantage of the defense; that the defense is too
ambiguous to justify sending Defendant A to an institution for treat
ment of mental illness and Defendant B, whose overt homicidal
conduct was the same, to prison Or the gas chamber. These critics
urge that the trial should merely determine whether the defendant did
what he is accused of doing. After a finding of guilt, his mental condi.
tion then and now would be considered, on the issue of proper "dis
position," by getting answers to questions like: "Is he treatable? Is he
dangerous? Is he deterrable?" Perhaps the chief obstacle to adopting
this proposal is the sentiment that one who was incapable of avoiding
the doing of what he did, or of knowing that what he did was wrong,
should not be blamed for doing it. He should not be subjected to
the same stigma of guilt through a criminal conviction as the person
64. I shall be saying more about privacy in Chap. 2 (tort law) and Chap. 5
(collstilUtional law).
65. But you can gel a good idea of the nature of, and legal limits on, a variety
of other freedoms or strong claims made by Americans. in Dorsen. ed .. The Rights
of Americans (1970).

26

1. Some General Observations on Law and the Legal System

who did have the capacity to control himself and appreciate the
wrongfulness of his conduct. Any such similar treatment would
arouse a widely shared sense of injustice. Even a dog, Holmes reminded
us, distinguishes between being kicked and being stumbled over.
The proposed reform encounters, therefore, one of law's powerful
limits and is unlikely to receive any near future acceptance.
Much the same point is illustrated by the limits on the possibility
of extending "strict liability" in criminal law. This needs a little explanation. The typical crime involves a certain culpable mental element,
as for instance the intent to kill, the intent to take away another's
property without his consent, or carelessness that is gross enough (in
relation to the circumstances known by defendant) to amount to
criminal negligence. The typical tort, too, involves culpability or fault,
as for instance the intent to assault, the intent to defame, or negligence
(by which is meant the failure to abide by the standard of conduct
which would have been followed by a "reasonable man" in the circumstances involved).
In the tort field there have developed some areas of "strict liability," i.e., liability without fault. One example is the workmen's compensation system under which the worker injured on the job files his
claim with an administrative agency and collects compensation on the
basis of a governmentally prescribed schedule of benefits. He does not
have to assert the employer's negligence, or his own freedom from
contributory negligence. The financial structure varies, but a common
system is for the compensation payments to be made by the insurance
company with which the employer has insured himself. Another illustration of strict liability in tort is the field of "products liability."
Suppose you were personally injured in an auto accident because your
steering wheel had a defect which was unknown to you and which
was there when the car left the factory. If you can prove these facts to
the satisfaction of the jury, then under the developing law of recent
years you would be able to recover damages from the manufacturer
without proving negligence on his part.
In neither of these tort fields has there been very strong criticism
of the fact that liability was being imposed in the absence of fault.
We have, in recent decades, been increasingly sympathetic to the injured worker and injured consumer; the negligence standard in both
fields has not worked out satisfactorily for plaintiffs; the employer and
manufacturer defendants are in a better position to shoulder the loss,
and can protect themselves by insurance. Moreover, under the strict
66. See PackeT, The Limits of the Criminal Sanction 62-69. 131]35 (1968):
Kadish, The Decline of Innocence. 26 Cambridge L.J. 273. 283 (1968). For a summary
survey of the problems posed by the insanity reform proposals. sec Monahan.
Abolish the Insanity Defense?- NOl Yel. 26 Rutgers L. Re\". 719 (19i3).

C.

Limits of Law

27

liability standard they are not going to jail and are free from the
stigma of a criminal conviction. "It's only money" they are paying out,
in insurance premiums, and the added costs can probably be reflected
in their selling prices.
There are similar practical reasons for the growing success of the
movement for "no-fault" auto accident insurance - under which at
least certain economic losses from accidents (medical expenses, "loss of
work income) would be recovered under the victim's own insurance
policy, regardless of who was at fault. A mounting concern over the
difficulties, delays, and inequities of the prevailing "fault" system has
made people receptive to such an alternative system (of which there
are many varieties) that promises to be cheaper and to make recoveries
more rapid and certain. 57 There are even proposals now to extend the
no-fault insurance approach beyond automobiles, i.e., to accidents
involvi ng other products and services as well. 5
The situation is quite different when you are dealing with strict
criminal liability. Criminal liability without fault has existed on the
outer edge of criminal law but it has been a slightly growing edge,
with a tendency of the laws to extend beyond such standard categories
as food and drugs, liquor, conservation, and traffic regulation. 5 ' The
sense of injustice that I earlier described with respect to the insanity
defense operates here too, and is mirrored in the call by scholars for
a halt to the spread of strict criminal liability, and in the willingness
of courts to reject the idea that imprisonment can ever be imposed on
a strict liability basis, and in the forthright position of the American
Law Institute that: "Crime does and should mean condemnation and
no court should have to pass that judgment unless it can declare that
the defendant's act was wrong. This is too fundamental to be com
promised. The law goes far enough if it permits the imposition of a
monetary penalty in cases where strict liability has been imposed. "70
67. ABA Special Commission on Automobile Insurance Legislation, Automobile
NoFau1t Insurance (1978); Epsl.ein. Automobile No-Fault Pl:Jns: A Second Look al
First Principles, 13 Creighwn L. Rev. 769 (1980); O'Connell. The Injury Industry
(1971); I'\ew York Insurance Depanment (report to Go\'ernor Rockefeller), Automobile Insurance . . . for Whose Benefit? (1970): U.S. Depanmenl of Transportation, Molor Vehicle Crash Losses and Their Compensation in the United Slates
(I971); Kimbal1. AUIOmtrbiie Accident Compensation Systems-Objectives and Per
speClives, 1967 U. III. L.F. 370.
6B. See O'Connell, Ending Insult to Injury: Nofault Insurance [or Product~
and Services (1975); O'Connel1. The Lawsuit Lotlery: Only the Lawyers ''''in (19i9).
69. See ALI Model Penal Code. Commentary at 141]45 (Tent. Draft 1\"0. 4.
1955); Saltzman, Strict Criminal Liability and the United States Constitulion: Suh
sLamive Criminal Law Due Process, 24 \Vayne L. Rev. 1571 (197B); Note, 75 Colum.
L. Rev. 1517 (1975).
70. ALI. supra n.69 at 140. See scholars cited therein after the quot:J.lion; see
also Commonwealth v, Koczwara, 397 POl. 575. 155 A.2d 825 (1959); Morisetre v. U.S.,
342 U.S. 216 (1952).

28

I.

Some General Observations on Law and Ibe Legal System

Even where a statute seems to permit imposition of criminal lia

bility without fault (i.e., because it is silent on the required mental
element; very rarely does a statute explicitly authorize imposition of
criminal liability without fault) some studies show that the same feel
ing I have described about the necessity of a fault element strongly
influences the actual administration and enforcement of the statute.
Thus, a study of Wisconsin's food and drug regulations shows that
"prosecution under them takes place only when the defendant has
demonstrated subjective fault by showing a conscious intent to violate,
or, at least, a wilful heedlessness in failing to respond to repeated
warnings, However, the liability without fault character of these pro
visions is still of prime importance, . , because the necessity of proving guilty knowledge or intent to the satisfaction of a court or jury
would in many instances present an insurmountable burden to the
department and greatly hinder efforts at control and regulation. This
would be true even in many cases of conscious and advertent violation."n (Emphasis added.)
Relevant also is the matter of sentencing policy: In modern times
the rise of a "rehabilitation" ideal worked to soften the blameworthiness and deterrence approaches to punishment. But disillusionment
in the 1970s and 1980s has increasingly been a catalyst for legislation
making sentences less "indeterminate," sentencing guidelines less concerned with rehabilitation, and juvenile courts more similar to adult
criminal courts. " . . . We have not yet reached a state, supposing we
ever should, in which the infliction of punishments for crime may be
divorced generally from the ideas of blameworthiness, recompense and
proportionali ty."'2

h.

The" Rule of Reason" Ideal

The final attitude or ideal I wish to point to is something that

underlies many of the points I have already made (and even some of
those I shall make later). Looking back, for instance, at my examples
of people resisting law that strikes them as overly severe, or unduly
encroaching on people's "private" conduct, or unreasonably hampering the exercise of strong and pleasurable human drives: These bespeak
a "rule of reason." That is, people generally expect legal standards to
be reasonable. Laws and decisions that depart too far from this com71. Zick, Liability Without Fault in the Food and Drug Statules. 1956 Wis. L.
Rev. 641,654655.
72. From the senlencing memor;;mdum of Judge Frankel in U.S. v. Bergman.
416 F. Supp. 496. 500 (S.D.N.Y. 1976). See also Allen. The Decline of .he Rehabilita
tive Ideal (1980). and Chap. 2 herein at n.2]6.

C.

Limits of Law

29

mon expectation create enforcement problems and the danger of a

spreading disrespect for law. Even in the most complex bodies of doc
trine in any legal field. the lawmaker is constantly trying to avoid
overstepping the boundaries of the rule of reason; remember that
and you will have a good guide through many interpretation perplexities. "The main underlying purpose" of the law of contracts. said one
of its most respected students. Arthur Corbin. is to attempt "the realization of reasonable expectations that have been induced by the making
of a promise,"'. "The common thread woven into all torts," said the
prominent torts scholar. William Prosser. "is the idea of unreasonable
interference with the interests of others."" And when official unreason
ableness becomes gross enough it runs afoul of barriers within the law
itself. such as the Constitution's "due process" protection against
arbitrariness.

3.

Human Frailties in Emergencies

I come now to a third type of limit - one which is set by human frail
ties in moments of grea t stress.
1. For example. the law tends to deal rather leniently with some
kinds of criminal conduct that are impelled by a sense of overwhelming necessity. You have no doubt heard of the famous American
criminal case involving the lifeboat. adrift on rough seas. that was
leaking and so overcrowded that the first mate thought it imperative
to throw some people overboard in order to lighten the load and
thereby save the lives of others. rather than lose the lives of all. This
was a case in about mid-nineteenth century. in a lower federal court.'.
The ship William Brown with 65 passengers and a crew of 17 had hit
an iceberg off Newfoundland. About half the passengers went down
with the ship. And so perhaps did a noble maritime tradition: While
the facts are not altogether clear. it seems that the captain and crew
got out first. At least we know that all of them. together with the other
half of the passengers. managed to get into a "long boat" and a "jolly
boat." In the long boat. where the relevant action occurred. there were
9 crew members and 32 passengers. Acting pursuant to the first mate's
orders to spare the women and not part husband from wife. the crew
threw over most of the male adults. Next morning the long boat was
sighted by a ship. and all on board were saved.
73. I Corbin. Contracts 2 (1963).
74. Prosser. Handbook of the Law of Torts 6 (4th ed. 1972).
75. U.S. v. Holmes. 26 F. Cas. 360 (No. 15.383) (C.C.E.D. Pa. 1812). Further on
the Holmes situation. see Cahn, The Moral Decision 61-71 (1955); Hicks, Human
Jettison (1927).

80

I.

Some General Observations on Law and the Legal System

The sole defendant in the criminal prosecution was a crew memo

ber named Holmes; the first' mate and the other participating crew
members could not be located. The moderating influence on the law
exerted by the fact that the situation was one of emergency stress is
seen first in the fact that the grand jury refused to indict for murder,
but rather charged manslaughter. Moreover, the trial jury which came
in with a guilty verdict of manslaughter recommended mercy, and the
prison sentence finally imposed by the judge on Holmes (who had
already waited nine months in jail) was only six months. The judge's
instructions to the jury had said that the law recognized a defense in
terms of "necessity," applying to extreme situations as in defending
oneself against mortal attack, where the "peril [is] instant, overwhelming, leaving no alternative but to lose our own life or to take the life
of anotber person." But this defense would not apply where "the
slayer" not only wasn't attacked by others but was "under . . . obligation to make his own safety secondary to the safety of others," as the
defendant sailor was, said the judge, in relation to the passengers.
Where action need not be instantaneous, the drawing of lots would
be a fair procedure, the .iudge thought. among those "in equal relation"; the sailor's obligation to the passengers, however, would have
made that alternative unavailing here. In a 1928 address, Supreme
Court Justice Cardozo, then a New York Court of Appeals .iudge, discussed the Holmes case in his distinctively ornate style (which you will
come to recognize instantly upon reading a court opinion authored
by him):
There is no rule of human .1ettison. l\.Jen there will often be who, when
told that their going will be the salvation of the remnant. will choose
the nobler part and make the plunge into the waters. In that supreme
moment the darkness for them will be illumined by the thought that
those behind will ride to safety. If none of such mold are found aboard
the boat. or too few to save the others, the human freight must be left
to meet the chances of the Waters. "rho shall choose in such an hour
between the victims and the saved? \rVho shall know when masts and
sails of rescue may emerge oul of the fog?76

The issue in a case like this is profoundly troubling,77 and so was

the analogous issue in a famous English case involving cannibalism on
76. Hall. ed., Selected Writings of B. N. Cardozo 390 (1947).
77. Note how confounding are the questions that persist: What basis was there
for (he judge's finding an "obligation" in the sailor lh:J.l would nOl, in this situa
tion. reside in a passenger? How realistic was it to assume that for passengers (those
in "equal relation") in so exigent a siru31ion the dra.... ing of lots should be required? How does the drawing of lots compare. in fairness. with sailor Holmes's
order (described by his lawyer as "the dear dictate of humanil.Y') to spare the' women

C. Limits of Law

31

the high seas.'. There too, because of compassion for human frailties
in situations of overwhelming stress, the letter of the law was moder
ated: A death sentence was commuted by the Crown to six months.?S
There have been cannibalism cases in this country, not all of
which were immortalized in court opinions. One involved the Donner
party, trapped by early snow in what is now known as the Donner Pass
in the high Sierras. Some survivors of the disaster fed on the bodies of
some of the dead, as Bernard De Voto has vividly described. s Murder
and subsequent cannibalism by a Utah gold hunter, Frank Packer, in
Colorado in 1873 drew a sentence of hanging by Judge Gerry in
1883 - of which Gene Fowler contributes a memorable vignette:
Although Judge Gerry delivered what was considered the most eloquent
hanging speech in Western court history, an apocryphal sentence is the
one that persists, and by which this scholarly gentleman'S name still
lives..
Larry Dolan, who had a grudge against Packer, attended every
session of the trial. Between times, Larry filled himself to the larynx

and nO[ to separate man and wife? Should Holmes's order h3\"e been different if the
passengers included chiJdren, a dying man, male and female prisoners being transported to a place of execution. a world-famous male scientist or top political leader
or Olympic record-holder? Is there a "natural law" principle (and if so, should the
criminal law follow it here) that under no circumstances shall an "jnnocem" life be
deliberately taken in order that another, or enn a gTeater number. shall live? Should
the kind of situation in the Holmes case be viewed as governed by the practices
applicable in a "state of nature," i.e., outside the bounds of organized society. on
the theory of Holmes's lawyer th'll "[a}1I became their own 13wgi'\ers. . . . E'\'ery
man on board had a right to make law with his own right hand"!

78. Regina v. Dudley and Stephens. 14 Q.B. 273. 15 Cox Crim. Cas. 624 (1881).
FOUT seamen were in an open boat on the high seas, 1600 miles from the Cape of
Good Hope, having had to abandon a yacht in a storm. After drifting fOT eighteen
days. and after seven days without food and six days without water. two of them
agreed, with the third dissenting, that the fourth seaman - a youth of seventeen or
eighteen who Jay helpless, extremely weakened by famine and the drinking of se3waler-should be killed fOT sustenance the next day if help hadn't ~et arrind. And
kill him they did, next day. All thrt'C' of them fed on hi~ body for four days befort'
being picked up by a passing vessel. The two ringleaders were prosecuted for
murder. The jury found that probably all would ha\'e died ..... ithin the four da)'s
had not the three men fed on the bod)": that probabl)' the youth would ha'\'e died
first anyway. The jury Jeft it to the court to determine whether it was murder. The
judge so held, rejecting the idea that "necessity" could justify taking an innocent
human life. He referred to the "awful danger of admitting the principle which has
been contended (or:' "\\'ho is (0 be the judge of this sort of necessit)"? B)' whJ.t
measure is the' comparative value of lives 10 bl' measuTcd?" For more detail on this
case see Mallin. In \\'3rm Blood: Some Historical and Procedural Aspects of Regina
v. Dudley and Stephens. 34 U. Chi. L. Re\". 387 (1967).
79. Further on lht" type of situation presented in this English case, see Mc

Connick. Blood on 'he Sea

~pisode);

(196~):

Gibson. The BOlt (1953) (a World War II

FuUpr, The Ca5t' of the Spduncean Explorers. 62 Har'\". L. Rp\". 616 (1949)
(imaginary case and opinions).
SO. D('\"oto. The Year of Decision: ]846, 3t 38638i (19-13). Cannibalism follo\\"
ing an Andes plane crash i~ described in Read. AliH' (l9iI).

lI2

I. Some General Observations on Law and the Legal System

with '"Taos Lightning" . . . . Just as the fluent Judge Gerry began a
classical pronouncement of doom, Larry let out a cheer and fell from a
bench. Then he TOse, and ran drunkenly to his favorite saloon, bellowing
like ten Apis bulls of Egypt:
"Well, boys, ut's all over; Packer's to hang. The Judge, God bless
him . . . p'intin' his tremblin' finger at Packer, so ragin' mad as he was.
he said: '"They was siven Dimmycrats in Hinsdale County, but you, yah
voracious maneatin' son of a bitch, yuh eat five of thim! I sintince ye t'
be hanged by th' neck until y're dead, dead, dead; as a warnin' ag'n.
reducin' the Dimmycratic popalashun of th' State.' "81

I cannot resist telling one more tale, of the same macabre genre.
The whaleship Essex was rammed and sunk in the Pacific in 1820 by
an enormous whale, and this incident became the climax of Herman
Melville's Moby Dick. What happened after the sinking-which
Melvillf! did not write about - was this: Of the three lifeboats that
were launched, one was lost; on the other two, after lengthy ordeals
of storm and famine, cannibalism was practised on the bodies of a few
who had died. On one boat the men were also driven to kill one of
their number, after drawing lots. The victim was the cabin boy, a
nephew of the master of the Essex, Captain Pollard, who was in the
same lifeboat. "There is a Nantucket legend that when a reporter
from the mainland came out to the island to interview [Captain
Pollard] on his last birthday, the reporter closed the interview with
the personal remark that he was distantly related to one of the Essex'
crew. 'You remember him, of course: he added. 'Remember him: the
old man cackled. 'Hell, son, I et him!' "82
There was apparently no prosecution in this case. "'-'here prosecution did occur in the other cases mentioned, we have seen that the
courts typically refused to recognize a "necessity" defense as such, but
punishment tended to be lenient. "The law falters and averts her face
and sheathes her own sword when pronouncing judgment upon creatures of flesh and blood thus goaded by the Furies."aa (Yes, that was
Cardozo again.) Judge Gerry's treatment of Frank Packer does not fit
this description, but not all the facts of the case are clear; and further
data presented by Gene Fowler might suggest that the multiple killings
were unnecessary and connected with a robbery motive.
Though the states today would rarely be found recognizing a
necessity defense where the defendant had taken an innocent, human
life <as distinct from, say, theft or destruction of another's property),
81. Fowler, Timber Line 37 (1933). Afler reversal and a second ('om'lCllon,
Packer received a life sentence, and was p.udoned after ]8 years. Id., al 38.
82. Whipple, ThreeMonth Ordeal in Open Boats. Life, No\'. 10. 195~, 31 ]56.
83. Hall, ed., supTa n.75 at 390.

C. Limits of Law

33

the American Law Institute's Model Penal Code is willing to go further by recognizing for all crimes a "choice of evils" provision_ This
recognizes as a defense the. defendant's belief in the necessity of his
conduct where "the harm or evil sought to be avoided by [the defendant'S) conduct is greater than that sought to be prevented by the law
defining the offense charged," unless this defense would be inconsistent
with a legislative purpose appearing elsewhere in the state's statutes. 54
2. Related to this necessity defense is a classic defense in terms of
"duress" or coercion. The Model Penal Code, for instance, recognizes
this defense where there was coercion against the defendant by use or
threatened use of unlawful force against the person - force which a
person of reasonable firmness in his situation would have been unable
to resist. 85
3. Some other related situations: You are doubtless familiar with
the fact that some rather frequently occurring stressful circumstances
will mitigate an intentional killing so as to prevent its classification as
"murder." If the circumstances amount to "self-defense," there is a
complete defense to the alleged crime. If the defendant were not acting
in self-defense but his intentional killing can be shown to have been
done "in the heat of passion" and upon "sufficient provocation," then
under many homicide statutes these stressful circumstances would
mitigate the crime from murder to "voluntary manslaughter."
4. A highly stressful situation of still a different sort is that of
euthanasia Or mercy-killing - involving, for example, the terminal
cancer patient who is in great pain which caimot be relieved by drugs
(or can be relieved only by a fatal dosage) and which impels the defendant to commit euthanasia. Here the letter of the law is still against
the act, through a legislative prohibition either against murder or
against assisting a suicide. But the letter of the law is being moderated
by leniency in the administration of the law. There have been anum
ber of cases in which a jury acquittal was based upon a defense in terms
of temporary insanity, or a defense that the conduct of the defendant
had not actually caused the death. You may remember the muchpublicized English trial of Dr. John Bodkin Adams a good many years
ago, skillfully described in Sybille Bedford's book.B. The defense was
in terms of causation - i.e., that his conduct had not caused the death.
The reason why the jury was able to acquit on that ground was that
the judge's instruction said: If the administration of the drug by the
doctor merely had the effect of hastening the death so that it occurred
84. ALI Model Penal Code 3.02 (Proposed Official Draft 1962): id., Com
mentary at 510 (fent. Draft No.8, 1958).
85. ALI Model Penal Code 2.09 (Proposed Official Draft 1962): id., Com
mentary at 216 (fent. Draft No. 10. 1960).
86. Bedford, The Trial or Dr. Adams (1958).

lI4

I.

Some General Observations on Law and the Legal System

on Monday rather than on Tuesday, this could not be viewed as the

cause of the death. That is a pretty lenient instruction on what consti
tutes cause. Here you have an illustration of a judge, not only a jury,
showing compassion; and there have been other mercy-killing cases in
which, after a jury verdict of guilty, the judge was lenient in the sentence. So, too, in some cases after a substantial sentence has been
imposed, the executive has shown clemency by reducing it considerably.
There is an opinion in a euthanasia case, by the highly respected
Judge Learned Hand of the federal Court of Appeals for the Second
Circuit (which sits in New York), together with 'a dissenting opinion
by the equally renowned Judge Jerome Frank, that is important
enough to merit consideration at some length. Judge Hand set out
the basic facts as follows:
The District Attorney, on behalf of the Immigration and Naturalization Service has appealed from an order naturalizing the appellee,
Repouille. The ground of the objection in the district court and here is
that he did not show himself to have been a person of "good moral
character" for the five years which preceded the filing of his petition.
The facts were as follows: The petition was filed on September 22,
1944 and on October 12, 1939, he had deliberately put to death his
son. a boy of thirteen, by means of chlorofonn. His reason for this
tragic deed was that the child had "suffered from birth from a brain
injury which destined him to be an idiot and a physical monstrosity
malfonned in all four limbs. The child was blind, mute and deformed.
He had to be fed; the movements of his bladder and bowels were
involuntary, and his entire life was spent in a small crib." Repouille had
four other children at the time towards whom he has always been a
dutiful and responsible parent; it may be assumed that his act was to
help him in their nurture, which was being compromised by the burden
imposed upon him in the care of the fifth. The family was altogether
dependent upon his industry for its support. He was indicted for
manslaughter in the first degree; but the jury brought in a verdict of
manslaughter in the second degree with a recommendation of the
"utmost clemency"; and the judge sentenced him to not less than five
years nor more than ten, execution to be stayed, and the defendant to
be placed on probation, from which he was discharged in December
1945. Concededly, except for this act he conducted himself as a person
of "good moral character" during the five years before he filed his
petition. Indeed, if he had waited before filing his petition from
September 22, to October 14, 1944, he would have been admitted without
question. 87

Judge Hand went on to say that, under prior decisions of the

court, the statutory "good moral character" requirement was to be
87. Repouille v. U.S .. 165 F.2d 152 (2d Cir. 1947).

C.

Limits of Law

35

decided by the "generally accepted moral conventions current at the

time." He acknowledged that ascertaining these conventions was ex
tremely difficult "in the absence of some national inquisition, like a
Gallup Poll." He thought many people would be willing, in some
matters of deep personal conviction, to defy the law; "few of us exact
of ourselves or of others the unflinching obedience of a Socrates." But
he was unwilling to give decisive weight to the sympathetic attitude
shown by the jury and judge in Repouille's criminal case, since "a
similar offender in Massachusetts . . . although . . . not executed,
was imprisoned for life." So on the basis of the best guess he could
make about current moral conventions, he concluded that "only a
minority of virtuous persons would deem the practise morally justifi.
able, while it remains in private hands, even when the provocation is
as overwhelming as it was in this instance." Therefore, disagreeing with
the trial judge, he ordered the petition for naturalization dismissed,
but "without prejudice to the filing of a second petition."
The decision was concurred in by Augustus Hand (Learned's
cousin), but Judge Jerome Frank dissented. He argued first that the
statute contemplated as a standard not the opinions of the whole
public but rather "the attitudes of ethical leaders." But since prior
decisions had already ruled against that interpretation, he addressed
himself to the ascertainment of public opinion by declaring that
in any case such as this, where we lack the means of determining
presentday public reactions, we should remand to the district judge
with these directions: The judge should give the petitioner and the
government the opportunity to bring La the judge'S attention reliable
information on the subject, which he may supplement in any appropriate
way. All the data so obtained should be put on record. On the basis
thereof, the judge should reconsider his decision and arrive at a conclusion.

Notice, first of all, that the treatment of Repouille by the criminal

court and by this court does not represent an exception to the point I
have been making. The criminal court did show leniency at every
stage: The grand jury had indicted for manslaughter in the first degree
instead of murder; the jury convicted of manslaughter in the second
degree with a recommendation of utmost clemency; the judge's sentence of five to ten years was suspended and Repouille was merely put
on probation. Moreover, in the naturalization case, the majority's
decision was only superficially tough; they knew, and mentioned in
the opinion, that Repouille's application after the decision would be
successful because of expiration of the statutory five-year period. Nor
did the Massachusetts case referred to by Judge Hand represent an
exception to my point. In that case, the governor had gotten his execll-

56

I.

Some General Observations on Law and the Legal System

tive council to approve a reduction of sentence from death to life

imprisonment; and (a couple of years after the Repouille decision)
a new governor got approval of his council, by a 6 to 3 vote, to reduce
the sentence to six.yearsto-life, thereby resulting in the prisoners
immediate parole. ss
Notice also the difference in the attitudes of Judges Hand and
Frank toward ascertaining public opinion on the "good moral char
acter" issue. Hand was willing to depend on his best guess; Frank
said actual evidence of public opinion should be taken. It so happened
that just prior to the decision a Gallup "national inquisition" had
occurred, in which the question, "v,'hen a person has incurable disease,
should doctors be allowed to end his life painlessly if requested by
patient and family?" was answered yes by 37 percent of those queriedwith much variation on the basis of age, sex, economic status, and
education. so A question put in terms of the Rcpouille situation would
presumably have drawn an even smaller percentage of approval, so
Hand probably guessed right.
But Frank's approach rides the wave of the future as far as poll
evidence is concerned. Such evidence is relatively new and there are
certain obstacles to be hurdled in the law of evidence, but a widening
variety of such evidence is being accepted as valid, when the witness
is a qualified expert who explains the method and theory of his poll.
ing procedures. Poll evidence is obviously pertinent when a defendant
seeks a change of venue (place of trial) on the ground that community
opinion is inflamed against him. An interesting use of poll e\'idence in
a breach of contract case involving a question rather analogous to the
"good moral character" issue in the Repollille case was this: A movie
screenwriter had a contract with a Hollywood studio in which he
agreed to conduct himself with due regard to public conventions and
morals, and not do anything tending to bring himself into public disgrace, ill will, or ridicule, He thereafter refused, on the ground of his
Fifth Amendment privilege against self-incrimination, to answer questions before the House Committee on Un-American Activities concerning his alleged affiliation with Communists. In the breach of contran
suit, the court recei\'cd in evidence an opinion poll conducted by an
expert pollster in Muncie, Indiana, indicating that about 67 percent
of those polled thought such a rcfmal to testify showed thc witness
to be a Communisl or Communist sympathizer,DO
88. Ne ..... sweek. Jan. 17. 1919. at 24-25.
89. 5f't" l\UIf', Judicial DC'tf'rmin:ltion of Moral Conduct in NalllT31iz:lIion Hf'~lI"'
ings. Hi I'. Chi. L Rt'\'. 138. 11114:.! (l9~R): 11 Puh. Opinion Q. 4Ti (l9~i).
90. This case together with numerous others. in a striking varielY of siw:J.liom,
i5 coverf"cJ in Anno!.. Admissihilit)' and ',"eighl of Sur\'eys or Polls of Puhlir or
Consumers' Opinion, Recognition. Prd(ftnn. or Ihc Like" 71i A.L.R.:..!n 619 (1!l!iI).
There is a good discussion of problems enmuntcr("d in Ihe ust' or such evidence in
Zeist"l, Tht: Uni4ut'nt'~s of Surn"y E\'idence, 45 Corm"l1 L.Q. 32:.! (1960).

C.

Limits of Law

57

A lawyer-sociologist team of Nebraska resarchers has laid in a

stock of poll evidence with potential use by courts and legislatures,
by assessing public opinion on a number of issues in the field -of domestic relations: e.g., parents' right to transfer custody of the child
without supervision, their right to control a child's earnings, the
child's duty to support indigent parents, etc." It is important to understand, however, that such an ascertainment of community values is not
the final word on what the law ought to be. In the Repouille case, it
was treated as the final word (as against the views of "ethical leaders"
or the court's personal views) because the naturalization statute was
construed to require just that. Congress was viewed as requiring the
court to adopt the public'S view of what constituted "good moral character." In the absence of such legislative direction, the wise court takes
the public's view into account but does not necessarily reflect that view.
Even a legislator (who is regarded as more directly responsible to a
constituency than is a court) is ideally responsible to his own conscience
when that conflicts with what his constituency desires, as President
Kennedy (then senator) tried to remind us in his 1955 book Profiles
in Courage.
I can illustrate the point in still another way: When the abovementioned Nebraska researchers expressed the hope that out of their
study would come "a more 'reliable method than is now in use for
those who seek to narrow the distance between lawmakers and their
subjects," and seemed to be criticizing the Model Penal Code drafters
for not consulting community opinion, this drew a response from a
principal drafter of the Code. The response was that the Code was not
trying "to 'narrow the distance between lawmakers and their subjects';
i.e., to make 'popular' law. On the contrary the Institute is trying to
narrow the distance between lawmakers and such 'unpopular' people
as psychiatrists and sociologists. We are engaged in making rational,
useful law which we hope can be popularized by education.""
The point, as I have already suggested, is even more pertinent to
the operation of a court - though obviously a known preponderance
of public opinion would weigh very heavily in the deliberations of
both legislator and judge. You can see how the point that I have been
making about stressful situations (out of which grew the discussion
about the court's active or passive role in relation to public attitudes
about those situations) dovetails with the earlier point about the law's
91. Cohen, Robson & Bales. Parental Authority: The Community and the Law
(1958). Another eX3mple of such research oriented toward what the law should bc,
is in the field of public attitudes concerning desirable property distribution when
people die without a wiB. See FeUows. Simon &: Rau. Public AtlilUdes About
Property Distribution a1 Death and Intestate Succession Laws in the United Siales,
1978 Am. B. Foundation Research J. 321.
92. Sch\\'artz. Ascertaining the Moral Sense of the CommunilY: A Comment. 8
J. Legal Educ. 319320 (1955).

38

I. Some General Observations on Law and the Legal System

inability to get too far out of line with public attitudes. At the close of
. this section on limits of law. I shall have more to say. by way of summary. on the law's capacity to effectively change people's attitudes and
behavior_
Returning then to the main point for which the euthanasia cases
have been used here - the limits put by stressful situations upon the
law's effectiveness - you may well ask: Well. then. why doesn't the
law openly recognize a right of mercy-killing? Why does it cling to the
principle that a defendant's worthy motives may be considered in
mitigation of penalty but not as a complete defense? Apparently for
the same reason that it does not condone the other types of conduct
under stress that I have already noted: the fact that great practical
difficulties and dangers would arise from even such a limited recognition of the right to kill.

4.

Difficulties and Risks in Administration

The practical dangers mentioned above represent a fourth general

limit on what the law can do. namely, the fact that difficulties and risks
in the administration of an otherwise desirable right may make the
granting of the right more harmful than beneficial. In the case of
euthanasia. what are these risks and difficulties?
I am not concerned here with cases based on a patient'S right to
refuse ordinary medical treatment (e.g . blood transfusions and limb
amputation) allegedly necessary to sustain life;"> or the right of a terminally ill patient to refuse or discontinue extraordinary measures (e.g .
life-support machines designed to forestall an otherwise imminent
"natural" death) often pursuant to the terms of a "living will" authorized under a number of states' statutes."' Rather. I have in mind what
is more accurately called euthanasia (though similar to the right of
the terminally ill above): those situations in which a person takes the
affirmative step of hastening nature's course by. for example, administering an intentionally fatal overdose of a drug, for benign motives
and with consent of the victim - a consent which was lacking in the
Repouille case."'
There are obvious risks and difficulties in allowing such a right to
93. See Annot.. 93 A.L.R.3d 67 (1979).
94. See In Te Quinlan. 70 N.). 10. 355 A.2d 647 (1976). cert. denird. sub. nom.
Garger & Gallagher v. New Jersey, 4~9 U.S. 922 (1976): Symposium on In re Quill!.;n.
30 Rutgers L. Rev. 243 (197i): Symposium. Mental Incompetents and the Right to
Die. II Suffolk L. Rev. 919 (197;): i':Oles. 46 U. Cin. L. Rev. 192 (19;7): 49 id. 228
(1980).
95. See Right-lo-Die Groups Seek Another Right: To Aid In Suicide. "~all 51. J.,
Sept. 4, 1980, at I.

C. Limits of Law

39

assist another in committing suicide - primarily the danger that the

assister has less than benign motives and is lying about the victim's
consent. Legislative safeguards have been proposed, e.g., allowing a
doctor to administer euthanasia (I) after two other doctors have
concurred in the diagnosis of the disease as fatal and incurable, and
(2) in the presence of another doctor, lawyer, or nurse, upon the patient's consent, obtained in writing, and in the presence of two witnesses, Even allowing for these conditions, objections are voiced that
a patient crazed with pain is not in a position to freely give consent;
and if he were not in such an extremity, would he be likely to give
consent? Also, should we not worry, it is asked, that a miraculous cure
may be discovered shortly after the killing? And might this procedure
be an entering wedge for other less defensible killings - for instance,
of the senile or of the mentally deficient? Should the law ignore the
strong moral and religious objections to suicide and to assisting in
suicide? You may not find these considerations sufficiently weighty,
but so far they have led the law to say "no" to euthanasia. o6
In most instances of euthanasia, however, the two proposed legal
safeguards mentioned above would probably prevent fraudulent abuse.
The possibility of such abuse has been stronger in certain other areas
where the law has been unwilling to recognize an otherwise desirable
right. For instance, there has been a well-established rule (departed from
in a few exceptional situations) that you cannot recover damages for
nonintentional but negligent infliction of mental or emotional suffering in the absence of physical impact. The plaintiff who, for instance,
suffered emotional shock as an eyewitness to injury done to another
could not recover. What has underlain this impact rule? Principally
it has been the fear that the right of recovery would be too readily
subjected to fraudulent abuse. The suffering testified to by plaintiffs
might be wholly imaginary but disproof would be difficult, and the
partial safeguard provided by an identifiable physical injury would be
lacking. Still, court attitudes have been shifting - particularly when
physical injury can be shown to have resulted from the emotional
stress, or when the plaintiff had been in the "zone of danger" at the
time of incurring the stress .7
As is apparent from this shift in judicial attitudes, courts have
sometimes changed their minds on whether the problem of proof and
disproof presented too much difficulty. Another illustration is the
96. See Morris, Voluntary Euthanasia, 45 \\Tash. L. Rev, 239 (1970); Kamisar.
Some Non-Religious Views Against Proposed Mercy-Killing Legislation. 42 Minn. L.
Re\', 969 (1958); \Villiams, "Mercy-Killing" Legislation - A Rejoinder. 38 U. Colo.
L Rev. 178 (1966); WiIliams, The Sanctity or Life and the Criminal Law 311-350
(J957); Sil"ing. Euthanasia: A Study in Comparative Criminal Law. 103 U. Pa. L. Re\,.
350 (1954).
97. Morris on Tons 191195 (2d ed. 1980); Prosser, supra n.73 at 328-333.

40

I.

Some General Observations on Law and the Legal System

repudiation in one case after another since 1946 of the longstanding

rule that a child cannot recover damages for injury suffered (while in
the mother's womb) as the result of negligent injury inflicted on the
mother. o So too. the New Jersey Supreme Court did not abide by its
1967 decision rejecting a claim by parents against a doctor for his negligent failure to inform them of the increased possibility. in their case.
of a defective birth. The 1967 court thought it was an "impossible"
task to evaluate "the intangible. unmeasurable. and complex human
benefits of motherhood and fatherhood and weigh these against the
alleged emotional and money injuries" from a defective child. o, In
1979. however. the same court found this weighing process not impossible as far as the parents' claim for emotional injury is concerned. In
denying the parents' claim for the money injury. i.e . the costs of rearing the defective child. the court pointed to some other difficulties:
Recovery "would be wholly disproportionate to the culpability involved. and . . . [would] constitute a windfall to the parents and place
too unreasonable a financial burden upon physicians.''o.
The question of unreasonable burdens on others raises problems
similar to those in the blind man situation described in Section B of
this chapter. That is. why has American law not yet recognized the
right of an individual to recover against a stranger for failing to come
to his rescue when the stranger could have done so without much risk
of injury? Apparently. the fear still prevails that the burden imposed
by such a right might be too heavy - particularly considering the
98. Morris. id. at 190-191; Prosser, .supTa at 335338.
99. Gleitman v. Cosgrove, 49 N.]. 22, 29, 227 A.2d 689, 693 (1967).
100. Berman v. Allen, 80 N.]. 421, 432, 404 A.2d 8, 14 (1979). It is more common
fOT courts in this type of case to recognize the economic rather than emotional
injury claim (Commem, 8 Hofstra L. Rev. 257, 266 (1979, and either allow all
economic costs of raising the child (Becker v. Schwartz, 46 N.Y.2d 401. 412-415. 386
N.E.2d 807, 813-814 (1978)) or deal with the above quoted difficulties by requiring a
deduction from the economic damages of an amount representing the "benefils"
[rom having a child. though defective (see Troppi v. Scar. 31 Mich. App. 240, 254255, 187 N.W.2d 511, 517-519 (1st Div. 1971), which incidentally. did not sep.rate
the economic and emotional injury claims) OT by compensating for the "economic
burden related solely to the physical defects of the child" Uacobs v_ Theimer, 519
S.W.2d 846. 849 (Tex. 1975.
The defective child's claim (of "wrongful life") W3S usually joined with the
parents' claim (of "wrongful birth") in those cases but has generalIy not bl:'en recognized: The courts USU311y spoke of the impossibility. or unduly speculative character, of weighing the child's impaired life against non-life, or Hatly expressed the
conclusion that impaired life is mOTe precious than non-life_ (Comment. 8 Hofstra
L. Rev_ 257, 267-268 (1979); Cor criticism. see 269-272.) For [he defectin' child situation and related situations, see generaJ1y Robertson, Toward Rational Boundaries
of Tort Liability for Injury to the Unborn: Prenatal Injuries. Preconception Injuries.
and Wrongful Life, 1978 Duke L.J- 1401 (1979): Annot .. Tort Liabilil)' For 'Wrongfully Causing One To Be Born. 83 A.L.R_3d 15 (1978). A number of courts have
recognized "wrongCul birth" actions by parents claiming the doctor's negligent pf'rfonnance of an unsuccessful sterilization or abortion operation. Commem. 8 Hofstra
L. Rev. 257 nn. 3 & 4.

C.

Limits of Law

41

understandable panic in such emergency situations, and the lack of

clearly defined situations in which there will be such a duty to act.
Our prevailing morality barely makes us our blood brother's "keeper";
it has not yet made us a stranger's keeper. I must point out, however,
that there has been strong moral criticism of this position of the law.
A judicial change of mind - like those changes described above - is
likely to occur here. IO '
StilI another influential consideration, sometimes mentioned in
the cases already considered, was specifically stressed in a case involving this claim by a child: that he should recover damages against his
unwed father who had induced the mother to engage in sexual relations by fraudulent promise of marriage, thereby depriving the child
of a claimed "right to be a legitimate child, to have a normal home,
to have a legal father, to inherit from his father, to inherit from his
paternal ancestors, and for being stigmatized as a bastard." A main
concern of the Illinois court rejecting the claim was that to recognize
the alleged right would open wide the "doors of litigation" to all per
sons "born into the world under conditions they might regard as
adverse."'o, This, then, is another practical difficulty that gives the
courts concern: the feared swamping of the courts with litigation, and
the opening up of "a field that has no sensible or just stopping
place.",o3

5.

"Internal" Disputes

I move to another category, but it is not wholly a separate one. It involves in part the kind of practical considerations already treated in
the previous category, together with privacy considerations also involved in an earlier category. I am thinking of the situations involving
the internal affairs of nonprofit associations, like families, fraternal
societies, religious groups, and unions.
101. See Weinrib. The Case For A DUly 10 Rescue, 90 Yale L ..J. 217 (1980): NOles.
47 Ind. L.J. 321 (1972). 55 id .. 551 (1980): Franklin. Vermonl Requires Rescue: A
Comment, 25 Stan. L. Re\', 51 (1973); Prosser. supra n.73 at 310-343.
102. Zepeda v. Zeped., 41 III. App. 2d 240. 190 N.E.2d 849 (1963), c<rl. denied,
379 U.S. 945 (1963). See also Williams v. Slale, 18 N.Y.2d 481, 223 KE.2d 343 (1966):
l'\ote. 66 Colum. L. Rev. 127 (1966). Compare a 197i Illinois case recognizing a
child's claim against a doctor and hospital for preconception negligence: i.e .. a
negligent blood transfusion [0 the child's mother over seven years before conception
had caused memal and physical impairments of the child, apparent at birth.
Renslow \', Mennonite Hosp .. 67 Ill. 2d 348. 367 r..;.E.2d 1250 (1977). discussed in
NOle. 48 U. Colo. L. R,,. 62 (1977).
103. Rieck v. Medical Protective Co., 64 Wis. 2d 514. 219 N.\V.2d 242. 245 (1974).
This was a parents' action against the clinic and obstelrician for negligelltly failing
to ascertain the mother'S pregnancy in time to permit abonion,

42

I.

Some General Observations on Law and the Legal System

You can see why the law in these situations tends to stay its hand.
Not only are there constitutional restraints to worry about.'"' but a
court's inquiry into, and interpretation of. a group's rules and prac
tices "may lead it into what Professor Chafee has called the 'dismal
swamp: the area of its activity concerning which only the group can
speak with competence."'' The difficulties encountered when the
court tries to provide appropriate remedies must also not be dis
counted. The family is a good example here since some family disputes
are obviously not appropriate for resolution by a court.'G The wife
who complains, for instance, that her husband no longer exhibits
affection, can hardly get a court to order her husband to exhibit affec
tion, or even get a court to order her wayward husband to live under
the same roof. The same goes for certain other family disputes - e.g.,
the proper schooling and upbringing of children.'7
This is not to say that "internal"' affairs of institutional groups are
immune from legal intervention. "Thus, although we must respect the
autonomy of the family, intervention against child abuse is nonetheless
essential. And although we delegate great power to labor unions, we
impose upon them obligations of fair representation . . . ."'.8 As for
churches, the Supreme Court in dealing with church propert), disputes
arising out of church schisms once counseled deference to the judgment
104. For instance, the First Amendment's clauses on religious freedom and
church-state separation represent a barrier to governmem inten'ention in the religious affairs of church institutions. And. "(s]ince the First Amendment and due
process clauses appear to guarantee to individuals the right to associate freely, . . .
intervention might be challenged on constitutional grounds as an interference with
the protected sphere within which groups are free to act as thq' wish. and. in
particular, to choose their own members." I\;ore, 76 Han', L. Re\.. 983, 990-991 (1963).
105. [d. at 99I.
106. For discussion of state intrusion in family affairs. see Note, 26 Stan. L. Rev.
1383 (1974).
107. For example, in }959 the Supreme Court of Alabama considered a case in
which a father was seeking a court injunction to restrain his wife, with whom he was
living, from sending their child to a public rather than a parochial schoo1. The
court decided that it should not interfere at all. It pointed out that the case did
not involve a question concerning custody of the child, incident 10 a separation or
divorce, "but simply whether a court of equity should sellie a difference of opinion
between parents as La what is best for their minor chHd when the parents and the
child are all living together as a family group." "It seems to us," said the court, that
"if we should ho!d that equity has jurisdiction in this case, such holding will open
wide the gales for settlement in equity of all sorts and \"arielies of intimate family
disputes concerning the upbringing of children. The absence of cases dealing with
the question indicates a reluctance of the courts to assume jurisdiction in di!<Oputes
arising out of the intimate family circle. It does not take much imagination to
envision the extent to which explosive differences of opinion between parentl' as to
the proper upbringing of their children would be brought into court for attempted
solution . .. . Considerations of policy and expediency forbid a resort 10 injunctive
relief in such a case: Kilgrow '"- Kilgrow, 268 Ala. 475. 479,108 So. 2d 885, 888 (1959).
108. Tribe, Seven P]uralisl Fallacies: In Defense of the Adversary Process - A
Reply to Justice Rehnquist, 33 U. Miami L. Rc\. 43, 49 (19i8).

C. Limirs of Law

43

of church tribunals but has qualified that decision with exceptions in

the case of fraud. arbitrariness. or collusiveness. provided no extensive
inquiry into church doctrine is required. And most recently it approved
a lower court's application of "neutral principles" of property law as
a permissible alternative to deference to the church tribunal's decision.l 09 Nonetheless. the courts remain mindful that sometimes "special
weight to the institutional decision [of church. family. union)" should
be given. "perhaps because adversary litigation of the propriety of
those decisions would have more disadvantageous consequences in
terms of diminishing the usefulness of the institution than would the
ultimate resolution by the court of the claim of individual right.""
I have by now given you numerous instances. in the present cate
gory and the preceding one. in which the law has been unwilling to
recognize certain rights because of its anticipation of adverse conse
quences. But sometimes hindsight as well as foresight is involved.
Occasionally. after a right has been recognized. the abuses of it are
discovered to be so acute as to caU for the withdrawal of that right.
This is what has happened in some states that have passed statutes
abolishing a right to damages for socalled heart-balm-where there
had been. for example. a breach of promise to marry. A New York
statute more than 40 years ago declared in its introductory section as
follows (and I think this explanation would stand for many other
states that have passed similar statutes):
The remedies heretofore provided by law for the enforcement of
actions based upon alleged alienation of affections. criminal conversation, seduction and breach of contract to marry, having been subjected
to grave abuses. causing extreme annoyance. embarrassment, humiliation and pecuniary damage to many persons wholly innocent and free
of any wrongdoing, who were merely the victims of circumstances, and
such remedies having been exercised by unscrupulous persons for their
unjust enrichment, and such remedies having furnished vehicles fOT the
commission or attempted commission of a crime and in many cases
having resulted in the perpetration of frauds, it is hereby declared as the
public policy of the state. that the best interests of the people of the
state will be served by the abolition of such remedies. . . ."111

But you should bear in mind that legislative withdrawal of a right

or obligation. or complete judicial abstention. is not the only possible
109. Jones v. Wolf, 443 U.S. 595 (1979). See Adams So Hanlon, Jones v. Woll:
Church Autonomy and the Religion Clauses of the First Amendment. 128 U. Pa. L.
Rev. 1291 (1980); Note, 68 Geo. L.J. 1141 (1980): Ellman, Driven from the Tribunal:
Judicial Resolution of Imernal Church Disputes. 69 Calif. L. Rev. 1378 (1981).
1I0. Rehnquist, The Adversary Society, 33 U. Miami L. Re\'. 1,8 (1978).
Ill. N.Y. Laws 1935, chap. 263. See Feinsinger, Legislatiye Attack on "Heart
Balm", 33 Mich. L. Rev. 979 (1935).

44

1. Some General Observations on Law and the Legal System

solution to the kind of problem described. Sometimes an alternative

right or obligation or remedy can be substituted. Thus. while a court.
as I said before. will abstain from ordering a man to exhibit love for
his wife or live under the same roof with her. the law does give the
wife certain other remedies -like divorce or support money. Consider
ing the court remedies of injunction. damages. restitution. and declara
tory judgment. there are many situations in which courts will allow
one remedy though excluding all others. Legislatures have alternatives.
too: Unsuccessful criminal legislation. instead of being simply reo
pealed. can be replaced with alternative systems of control. ll2

6.

The Problem of Knowledge

Now finally let me suggest another broad limit on what the law can
accomplish: the limit that is imposed by the relative dearth of reli
able scientific knowledge.
Reliable knowledge is of course important to legislators. adminis
trators. or judges since they are interested in ascertaining the probable
consequences of their enactments or decisions. Knowledge of this kind
is notoriously limited.
What about the kind of scientific knowledge that would enable
the fact finder in a dispute to accurately reconstruct the happenings
that gave rise to the dispute? We are here dealing with what Max
Radin once called one of the two "pennanent problems of the law"
(the other pennanent problem being the detennination. and the pub
lic's prophesying the determination. of the "just" decision).II" Jerome
Frank. in his popular book COUTts on TTial (1950). vigorously demon
strated the many pitfalls that lie in the path of the fact finder. among
them the uncertainty surrounding the credibility of witnesses. The
law would like to have a surefire method of testing the truth of a wit
ness's testimony; but lie-detector (polygraph) evidence is generally
inadmissible in court. partly because of unreliability. In this instance,
112. It has been urged that the solution for the present failures of narcotics
enforcement is not simply abo1ition of punishment but a system of distribution that
uses doctors to c1.ispense controlled d05CS to addicts while also attempting cures.
requires recordkeeping. and prohibits distribution through other cbanJleJs. Olhers
suggest that the present ineffective prohibitions against marijuana might be
replaced by a system permiuing sales through licensed dealers under a control
system similar to that for liquor. The 1972 Report of the National Commission on
Marijuana and Drug Abuse took a middle ground on marijuana: Production and
distribution of the drug. as well as possession with intent to distribute com
mercial1y. would remain criminal; but personal use. and possession incident thereto.
would be- decriminalized. Further on the varieties or 3\'ailable legislative and judicial
techniques. see the final section of this chapter.
113. Radin. The Permanent Problems of the Law, 15 Cornell L.Q. 1 (19::!9).

C.

Limits of Law

45

though, the main reason for inadmissibility may be not inherent unreliability but the fear that the trier of facts, whether judge or jury,
will tend to give an infallibility to the evidence that it does not
deserve. 1H
Still, in very recent years, some courts have moved in the direction
of admissibility of polygraph evidence, particularly when the tests were
taken "upon stipulation of the parties" ;'15 and some have started admitting (what had previously also been inadmissible) evidence obtained
by hypnosis. 11S Other new techniques of scientific evidence have caused
considerable movement in the field: "Neutron activation analysis,
sound spectrometry (voiceprints), psycholinguistics, atomic absorption,
remote electromagnetic sensing, and bitemark comparisons are but a
sample of the kinds of scientific evidence inundating the courts."l17
Change has worked in the opposite direction, too; there are cases in
which "[slome well-accepted scientific techniques, such as radar and
certain drug-testing procedures, have been challenged successfully."lls
The legal approach to admissibility of evidence in general has
been that any "relevant" conclusions should be admissible, in the absence of factors like "dangers of prejudicing or misleading the jury,
and undue consumption of time"; and this approach, according to
Professor IIIcCormick, should be applied to scientific evidence as well,
when the conclusions are "supported by a qualified expert witness."11.
While some courts have taken this approach, the most popular standard, announced in 1923, makes admissibility of scientific evidence
more difficult: The scientific principle or discovery from which an
experts testimony is deduced "must be sufficiently established to have
gained general acceptance in the particular field in which it belongs."12o
The many problems encountered in applying this standard have provoked strong criticisms, and suggestions for alternative approaches 12] 114. McCormick on Evidence. 207 (2d ed. 1972).
115. See Giane11i. The Admissibility oC No\'el Scientific E\'idence: Frye v. United
Siales, a Half-Century Later. SO Colum. L. Rev. 1197, 1199 n.S (19S0); Notes, 14
Akron L. Rev. 133 (19S0); 73 Colum. L. Rev. 1120 (1973).
116. Gianelli. supra nJ 15; MCLaughlan. Hypnosis in Its Role and Current Ad
missibility in the Criminal Law, 17 Willamette LJ. 665 (1981); Diamond. Inherent
Problems in the Use of Pre-Trial Hypnosis on a Prospecti\'e \OVitness, 68 Calif. L.
Rev. 313 (l9S0); Natl. L.J .. June 2, 19S0, at I. col. 4.
117. Gianelli. id. at 119S.
liS. 1d. at 1199 nn. 9 8: 10.
119. McCormick on Evidence. 203 at 491 (2d ed. 1972). The Federal Rules of
Evidence, effective in 1975 and adopted in many slate jurisdictions. dec1are reJe,'anl
e\'idence to be admissible (except as otherwise provided by the Rules. Federal Con
stitution or statute. or Supreme Court rules) and define rele\'ant evidence as
"evidence haying any tendency to make the existence of any fact [hat is of conse
quence to [he determination of the action more probable or less probable than it
would be without the evidence" (Rules 401, 402).
120. Frye v. U.S .. 293 F. 1013. 1014 (D.C. Cir. 1923).
121. See Gianelli, supTa n.l15; Note, 40 Ohio St. L.J. 757 (1979). It is not yet

46

1. Some General Observations on Law and the Legal System

including the above relevance standard or some modification thereof.

or "the creation of independent bodies of experts who would be called
upon to review novel scientific techniques before they could be used
in court."l2' Under the latter approach. the use of a "Science Court"
has been proposed for resolving scientific fact questions underlying
public policy issues. l23
Contrasting with polygraph evidence. which is close to the "inad
missible" end of the spectrum. is the kind of scientific evidence that is
not only admissible but conclusive - e.g . negative blood test evidence
in a paternity case. That is. if the blood types of the child and the
alleged father are incompatible - for instance. the father is AB type
and the child is 0 type - then science declares the alleged father
cannot be the actual father. One judge put it this way: On the basis
of the scientific evidence. the defendant could no more be the father
of the child in question than 3 dog could be the father of a cat. That
is how utterly conclusive this evidence is deemed to be. Such acceptance
is not accorded to scientific evidence that establishes a man might
possibly be the father. That kind of test evidence generally would not
even be admissible (though newly developing techniques are beginning
to produce a change in this rule).I2' But if the expert testimony is to
the effect that a man cannot be the father because of blood types. then
in most states that would be regarded as conclusive evidence. no matter
what the testimony of the woman in the case.
It is interesting that even when this kind of virtually absolute
scientific knowledge exists. some features of the legal system can serve
to undermine the normal legal consequence of such knowledge. I am
referring to the powerful role of the initial fact finder. whether jury or
judge. and to the special consequence that statutes may have.
Consider. for example. why in 1946 Charlie Chaplin lost a paternity suit brought against him in California.,"5 The jury chose to believe
the girJ"s testimony rather than the blood test evidence which. according to the scientists. showed he could not have been the father. It
happened that the California statutes had not laid down a mechanical
rule that negative blood test evidence (as I have described it above)
would absolve the defendant of a paternity charge.
clear wherher the Federal Rules of E\'idence were intended to reject the Frye
standard fOT scientific e\'idence. See Gianelli. supra at 1228]231.
122. [d. at 1~31.
123. Id. at 1232; Martin, The Proposed "Science Court," 75 Mich. L. Re\', 1058
(1977).
124. See Ellmann & Kaye, Probabilities and Proof: Can HLA and Blood Group
Testing Pro\'e Paterniry? 54 N.V.V.L. Re\". 1131 (1979). See also the TeTJs:J.ki article
and replving article by Jaffee. in 16 J. Fam. L. 543 (197;1978) and 17 id. at 457
(1978-1979).
125. Berry v. Chaplin. 71 Cal. App. 2d 652. 169 P.2d 442 (1946).

C.

Limits of Law

47

A rather similar case was similarly decided in Wisconsin in 1957.

The statute, unlike the statute of some other states (which made the
negative type of blood test evidence conclusive of nonpaternity) sim
ply said that such negative evidence "shall be receivable in evidence."
And another Wisconsin statute - quite common in other states, toodeclared that when a child is born to a married woman, "any party
asserting the illegitimacy of the child . . . shall have the burden of
proving beyond all reasonable doubt that the husband was not the
father of the child." The trial judge thought the wife's testimony
rendered the negative blood test evidence doubtful enough to prevent
the husband from fulfilling his burden of proof beyond a reasonable
doubt. Why could the appellate court not rule as a matter of law
that negative paternity evidence was conclusive of non-paternity?
The majority of the court thought that the statutes prevented such
a decision and, in particular, concluded that a legislature that had
"pointedly refrained" from adopting the conclusive evidence standard
of other state statutes should be allowed to let the fact finder weigh
the negative paternity evidence along with all other evidence, and to
preserve the fact finder's primacy in weighing evidence and judging
the credibility of witnesses. The dissent countered this reasoning,12"
but as previously mentioned, even where firm scientific knowledge
exists, other special factors may prevail: here, the weight given to
findings of the original fact finder and the special role that a statute
may play.
Now to get back to the point about the scientific knowledge spec
trum: On one end, you have lie detector evidence, which the courts
usually do not even admit into evidence. On the other end, you have
the negative blood test evidence for paternity, with the law tending to
view such evidence as absolutely conclusive. In between lies a range of
evidence. For instance, psychiatric testimony is, as you know, admitted
in evidence, but its weight wiII depend on many factors, including the
expert's qualifications and persuasiveness and how persuasive the psy
126. Prochnow,'. Prochnow, 274 Wis. 491, 502. 80 N.\\1.2d 278 (195i): "This
court has frequently held that the testimony of a witness or finding of a jury \\"hich
is contrary to unquestionable physical situations or common knowledge is of no
weight in favor of the side it is invoked to support . . . . Thus. it is frequently held
in negligence cases thal testimony as to location, speed. and the like must gi\"e way to
physical facts established by uncontradicted testimony. For instance. if verified skid
marks show that a car traveled on the left side of the road when and after the
brakes were appHed sufficiently to slide the '''heels. no weight can be ginn to tesliman)' of the driver and his passengers that he was at aU times in the right-hand
traffic lane_ .. _ Courts should not shut their eyes to ad"ances in science which
conclusi\'ely establish a fact, by simply repeating the age-old maxim thJl the
credibility of witnesses is for the trier of fact." The majoriry opinion is worth rt"3d
ing if only for its re\'elation that one who dons the judicial robes need not simultaneously shed his sense of humor and style_

48

I.

Some General Observations on Law and the Legal System

chiatrist is on the other side (generally each side does have such an
expert). Most expert or scientific evidence brought before the law falls,
like psychiatric evidence, somewhere between the two extremes indio
cated.
This is true, for instance, of the opinion poll evidence referred
to in connection with the Repouille euthanasia case. It is also true of
the social psychologist evidence that figured in the 1954 Brown v.
Board of Education school desegregation decision of the Supreme
Court. 1 7 Because that decision is often referred to - and (I think)
erroneously - as being based on sociological evidence, some space
will be given here to its explication.
The courtroom testimony by psychologists for the plaintiff school
children in the Brown case centered around some "doll tests." Sixteen
black children - ages six to nine - had been asked these questions
about the drawings of a white doll and a black doll, identical except
for skin color: (a) Show me the doll you like best, or that you would
like to play with (10 chose the white doll); (b) Show me the doll that
looks bad (II chose the black doll, I chose the white doll, the remain
ing 4 were silent); (c) Show me the nice doll (9 chose the white).
The witness-stand interpretation of these answers by psychologist
Kenneth Clark for the plaintiffs was that the black child accepts a
"negative stereotype" about himself.
However, Edmond Cahn has argued with considerable force that
the questions asked were ambiguous. The child might select what he
"likes," or "likes to play with," or the "nice" doll, on the basis of what
he is accustomed to; and most dolls are white. "Bad" might have been
interpreted similarly, i.e., as not a customary type of doll (or might
have been considered as the doll who had been naughty and hence
more fun to play with and rebuke; or might have been treated as
referring to the remaining dolls, by process of elimination, after the
preceding question had been answered).'""
Again, psychologist Clark's interpretation could be disputed when
he described as an "evasion of reality" the children's answers to the
last of the following questions: (d) Give me the doll that looks like a
white child (16 picked the white doll); (e) Give me the doll that looks
like a colored child (16 picked the black doll); (f) Give me the doll that
looks like you (7 picked the white doll). Cahn here again points to
ambiguities: "looks like you" in what respect? The child might not
have been thinking of color but of other likenesses - i.e., since the)'
found the white dolls "nice," perhaps it was this niceness they were
identifying with, not the color.
127. 317 U.S. 483 (1951).
J28. Cahn, A Dangerous Myth in the Schoo1 Segregation Cases. 30 ::'\.r.u.L. Rev,
150 (1955).

C.

Limits of Law

49

There are other difficulties. Not only was the sampling not shown
to be adequate, but the tests did not purport to isolate the effect of
school segregation on the children's answers. Indeed, another study by
Kenneth Clark had shown that black children's preference for white
dolls decreased as their ages went from four years to seven years, yet
these latter years are those of school attendance. l " And still another
Clark study had shown northern black children even more pronounced
in their preference for the white doll- apparently tending to refute
the notion that school segregation causes this preference. lS
Thus the psychological evidence presented in the Brown case was
not strong. Remember, however, that the Supreme Court opinion did
not rely on or even cite this evidence. Neither did it refer to a lengthy
appendix to plaintiff's Supreme Court brief, entitled "The Effects of
Segregation and the Consequences of Desegregation: A Social Science
Statement," signed by more than thirty leading scholars, including
sociologists, anthropologists, psychologists, and psychiatrists. What it
did cite in its now famous footnote II were several articles and books
(most of which had been included in the authorities cited in the above
appendix) dealing with the opinions of social scientists on the effects
of school segregation. These seemed not to be cited as the basis of the
Court decision but rather as corroboration. That is, after stating that
school segregation had a detrimental effect on school children, and
after quoting the finding of the Kansas court (in one of the four cases
being heard together by the Supreme Court) to the same effect, the
Court stated, "Whatever may have been the extent of psychological
knowledge at the time of Plessy v. Ferguson,l", this finding is amply
supported by modern authority." And footnote II was appended to
this statement.
Cahn made a further argument, namely that the use of social sci
ence evidence in these cases was dangerous. However appropriate such
evidence might be in cases of socioeconomic regulation, he asserted, it
should not be the basis for determining the scope of our "fundamental"
rights, such as equal protection of the laws. These rights, he argued,
should not depend on whatever happens to be current fad among social
scientists; future social scientists may have illiberal, "racist" notions.
But note that while there is some conflict in the standards applicable
to admissibility of scientific evidence, the following seems roughly true:
(I) Scientific evidence, whether the case involves economic regulation
or civil liberties, cannot be kept out - if relevant to the issues, pre129. Garfinke-l. Social Science Evidence and the School Segregation Cases, 21
Pol. 37 (1959).
130. ld. For an absorbing personal account of \\'itness Clark and the doll tests
see Kluger. Simple Justice 317321. 353-356 (1975).
131. 163 U.S. 537 (1896).

J.

50

I.

Some General Observations on Law and !be Legal System

sented by properly qualified experts. and regarded as not too unreliable

or misleading to the trier of fact by its aura of scientific infallibility
(cf. lie detector evidence). (2) How much weight is to be given the
evidence will depend on the facts of each case: on how careful the
analyses. experimentation. survey. or testing; how qualified and persuasive the expert; how widely accepted the assumptions. (3) This does
not mean that the court's common sense evaluations of fundamental
rights. e.g. of what is unequal protection of the laws. will be automatically eliminated. It means that when common sense does not speak
strongly and unequivocally. the court will be more inclined to rely on
carefully prepared scientific evidence. The Supreme Court in the
Brown case was more inclined to cite what it called the "supporting
authority" from social scientists because of the past difference of opinion on the basis of commonsense evaluation. regarding constitutionality
of racial segregation.
In Plessy v. Ferguson (the precedent that had upheld racial segregation in transportation) the Court as a matter of common sense had
not thought that segregation produced unequal protection. In fact the
Court there made some assertions that made it almost imperative for
the plaintiffs lawyers in Brown to introduce psychological material
designed to refute them. Thus. the Court in Plessy had said that segregation does not stamp the colored race with a badge of inferiority; that
the colored race has merely put that construction on it. It had also
asserted that "social prejudice' and "racial instincts" cannot be overcome by legisla tion. The psychological testimony and the collected
social science opinion in the appendix were directed at refuting these
assertions - as well as showing thal school segregation did not fulfill
a reasonable educational purpose. and that under certain conditions.
desegregation could be accomplished without undue conflict or vio
lence.
I do not wish to underestimate the difficulties in obtaining reliable
social science evidence. One indication of these problems is this observation by the editors of a 1978 comprehensive symposium on "School
Desegregation: Lessons of the First Twenty-five Years': "Almost all of
the social scientists writing for this symposium ... note how little
competent research has actually been done to date."l3' One contributor

132. Levin & Hawley. Foreword to the Symposium. 42 Law & Con temp. Prob ..
No.3, 1.3 (1978). They went on to say thaI "much of the social science research [hat
has been the far too narrow focus of the social. political and legal justificalion~ for
desegregation has used inadequate methodologies. inappropriatt" samples. "arying
definitions oC critical variables such as desegregation or student Ollte-omes and
reached contradictory or ambiguous conclusions."

C. Limits of Law

51

to the symposium, speaking of research on "children's selfimages and

racial self-identity" (e.g., the doll-test type of research previously described) showed why "this is an area beset with many methodological
and conceptual problems that make it difficult to draw firm conclusions."l" Such conclusions as had been drawn from social science
research on school segregation and desegrega tion seemed to have been
shifting. A lawyer contributor cited numerous studies for the proposition that "the near consensus among social scientists at the time of
Brown, based upon the most feeble of policy research, that desegregation would work to the advantage of blacks, has given way to a myriad
of more sophisticated and less conclusive research findings."'"
He further observed that "federal courts frequently appear disinclined to give much credence to social science findings in school
desegregation cases"'" and he argued for caution and skepticism in
dealing with such findings. l ' 6 Social scientists, too, have been suggesting that the authoritativeness and superiority of knowledge arrived at
by social science methods has been oversold, and that some social
problems are better handled through "ordinary knowledge" or "interaction" of social groups.137 The signers of the 1970 minority report of
the Federal Commission on Obscenity and Pornography expressed
their frustration at the fact that "conclusively proving causal relationships among social science type variables is extremely difficult if not
impossible. Among adults whose life histories have included much
exposure to pornography, it is nearly impossible to disentangle the
literally hundreds of causal threads or chains that contributed to their
later adjustment or maladjustment. Because of the extreme complexity
of the problem and the uniqueness of the human experience it is
doubtful that we will ever have absolutely convincing scientific proof
that pornography is or isn't harmful. . . . "1.8 Not surprisingly, the
Supreme Court has shown some uncertainty and caution in its han-

133. Epps. The Impact of School Desegregation on the SelEvaluation and

Achie. . .ement Orientation of Minority Children, id. at 58.
134. Yudof, School Desegyegation: Legal Realism, Reasoned Elaboration. and
Social Science Research in the Supreme COUrt. id" No.4 at 61, & n.2i. That the
newer research may not be as negative as sometimes daimed, see Hawley, The l'\'ew
Mythology of School Desegregation. id" No.4. 214.
135. Yudof. id. at 62. See also Levin, id. at 1-2.
136. Yudof. supra at 70-77. See also Lermack. No Right Number? Social Science
Research and the JurySize Cases, 54 N.Y.U.L. Rev. 951, 967976 (1979).
137. Lindblom .& Cohen. Usable Knowledge (1979). crHically reviewed in Zeiscl,
Social Science Hubris?, 1981 Am. B. Foundation Research J. 273.
138. Report of Commissioners Hill &: Link, concurred in by CommissionCl"
Keating, in Report of the Commission on Obsceniry and Pornography 489 (Bantam
ed. 1970).

52

I. Some General Observations on Law and the Legal System

dling of social science evidence in school cases,lSO the jurysize cases,l40

and some other areas of constitutional decision. l "
In spite of all the difficulties, it see~ the part of wisdom not to
ignore social science evidence, but rather to proceed cautiously, keep.
ing pace with its reliability.H2 "We cannot turn back the clock. Social
139. Yudof, supm n.134 at 107108.
140. The decision in Williams v. Florida. 399 U.S. 78 (1970). upholding con
stitutionaHly of a six-member jury in a state non-capital felony prosecution. rested
in part on an inverted reliance on social science evidence; the Court said that neither
the empirical studies (largely of civil juries) nor theory had shown six-member juries
to be inferior to larger juries in fulfiJIing a jury's functions. In Ballew \". Georgia,
435 U.S. 223 (1978). in\'alidaling a five-member jury in a state misdemeanor case,
the majority of the Court seemed to be backing away from statistical studies.
Justices Powell. Burger, and Rehnquist recognized that "the line between fi,'e and
sixmember juries is difficult to justify but a line has. to be drawn somewhere if the
substance of jury trial is to be preserved"; and they questioned the wisdom and
necessity of Justice Blackmun's heavy reliance on numerOlogy deri\'ed from statistical studies" (at 246). Justices Brennan, Stewart. and Marshall. joined in the Blackmun opinion insofar as it "holds" that criminal juries must be larger than five; they
too seemed to avoid endorsement of its reasoning. and so did the opinion of Justice
White. who simply asserted that a jury of five would not be representative enough.
(The Blackmun opinion, joined in by Stevens, had argued that post.\\'illiams
empirical studies supported the view that fivemember juries would disadvantage the
defendant; though the studies concerned juries of more than five, none showed the
effect of a reduction from six to five. and if anything showed that the reduction
from twel\'e to six in Williams should not have been approved. See critique in
Lermack. supTa n.136 at 962966.)
141. In rejecting Oklahoma's statisticsoriented defense of its gender based
drinking law. Justice Brennan for the Court, after pointing to various difficulties
and shortcomings in the research, said: "It is unrealistic to expect either members of
the judiciary or state officials to be well ,'ersed in the rigors of experimental or
statistical technique. But this merely illustrates that proving broad sociological
propositions by statistics is a dubious business. and one that inevitably is in tension
with the normati\'e philosophy that underlies the Equal Protection Clause. . . ."
Craig v. Boren. 429 U.S. 190,204 (1976). In U.S. v. Janis, 428 U.S. 433. 450451 (1976)
after canvassing the many empirical studies focused on whe~her the "exclusionary
rule" applicable CO unconstitutionally seized e\'idence was fulfilIing irs function of
deterring police misconduct, the Court found the studies inconclusi\e. The Court
has also said that empirical data on the social harm done by pornography is not
necessary in order to sustain a legislative ban on pornograph}', based on "unpro\'3ble
assumptions." Paris Adult Theatre I v. Slaton, 413 U.S. 49. 6063 (19i3).
Kenneth Davis has argued that the COUT[ in this case came (0 its conclusion too
hastily: [hat "the crucial question of legislati\'e fact was probably answerable with
evidence"; that in general the Court should change its procedure as follows: "(1) The
Court should recognize its affinnath'e responsibility to assure that reasonably a,ail
able legislative facts [hat may affect its lawmaking are adequately developed. (2)
When facts presented by the parties are inadequate. it should, unless it does its own
research, either request factual briefs on designated questions or remand for factual
development on those questions. (3) When extrarecord facts are crucial in its 13\\"
making. it should address the question whether procedural fairness requires that
parties be given a predecision chance to challenge the facts it uses." Da"is, Facts In
Lawmaking, 80 Colum. L. Re,'. 931, 939. 940 (1980). See also Horowitz, The COUTtS
and Social Policy 274284 (1977), for a discussion of courts' inadequate attention .to,
or erroneous assumptions about. relevant legislative facts. Generally on legislative
facts in constitutional litigation see Karst, infra at n.259.
142. For some sober assessments of possible approaches to reliable sociolegal

C.

Limirs of Law

53

scientists are with us for good, and are going to remain in the very
midst of government . . . . Judges may and should become acquainted
with the various non-legal disciplines. But because of the variety of
these disciplines, and of the variety of their judicial tasks, they will
always remain intelligent laymen, as far as these disciplines are concerned. And intelligent lay control . . . seems the best defense against
the tyranny of experts. . . . "1<,

7 _ A Perspective on the Limits of Legal Effectiveness

Looking back now on the various limits that I have mentioned, the
rather obvious moral is: It is silly to automatically respond to a social
problem by saying '"there oughta be a law" -without careful investigation into the limits that may apply.
On the other hand, it is just as silly to automatically respond by
the slogans "you can't legislate morality" or '"you can't change human
nature by law" - because law does play an affirmative, a deterrent, and
an educative role, getting people to act in a way that without the law
they might not act, and to have attitudes that without the law they
might not have.
Let me elaborate. Early in this chapter, I pointed out how the
criminal law embodies moral precepts aimed at influencing people's
attitudes and behavior. Can it really be argued that this attempted influence is ineffective; that when most of us respect and obey the criminal laws we are adopting attitudes and behavior that we would all
adopt even in the absence of the promulgation and enforcement of
those laws? Many years ago in Boston during a policemen's strike, the
extensive looting of the stores in most cases was done by youths who
had never done anything like that before. A clear inference is that the
law had helped to keep them in line, and that once the policemen
were removed they felt free to indulge in this activity.l44
Andenaes H ' has pointed to a similar phenomenon during an English policemen's strike, and another during the period in 1944 when
the Germans had arrested the Danish police force and substituted an
unarmed watch corps. He has referred to instances in this country in
empirical and experimental research. see Lermack, supra n.l36 at 967976: Zeisel.
Rdlections on Experimental Techniques in the Law, 2 J. Legal Stud. 107 (1973);
Kalven, The Quest For the Middle Range: Empirical Inquiry and Legal Policy, in
Hazard. ed., Law In A Changing America 5674 (1968).
143. Pekelis, The Case for a Jurisprudence of Welfare. Lawyers Guild Re\', 611,
625626 (1946).
144. See M. R. Cohen, Reason and Law 49 (1950).
145. Andenaes, The General Preventive Effects of Punishment, 114 U. Pa. L.
Rev. 949 (1966).

54

1. Some General Observations on Law and the Legal System

which criminal activity closely correlated with the degree of enforcement

activity. And he reminds us that when the Norwegian drunken driving
prohibition - the penalty for violation of which was an automatic
year's revocation of driver's license and generally a minimum 21-day
jail penalty - was strictly enforced, it seems to have changed people's
habits and attitudes. I tried to show earlier that when penalties get too
severe, obstacles may be created by prosecutors, juries, and judges. But
within that outer limit, it seems true that the commission or noncom
mission of at least some kinds of conduct presently labeled criminal
is closely related to the existence and degree of enforcement of legal
prohibi tions on that conduct, and sometimes to the severi ty of the
known penalties. This is more likely to be true when the conduct is
typically preceded by some rationalistic calculation of risks. But even
'in the case of less 'calculating conduct, the law is an important back
ground factor, helping to shape moral inhibitions that exert some
counterforce against the pressures for antisocial conduct. H6
That is, the very fact that certain conduct is known to be prohibited by law exerts a morally inhibiting pressure - surely for some people and for some kinds of conduct, and perhaps for most people and
most kinds of conduct. "Studies of public opinion show, says Hadley
Cantril, that after the adoption of certain laws and policies there is a
rise in public opinion favorable to these actions. Cantril offers as a
'law' of public opinion: 'When an opinion is held by a slight majority
or when opinion is not solidly structured, an accomplished fact tends
to shift opinion in the direction of acceptance: "147
A 1964 study, ,comparing attitudes toward school desegregation
existing in 1942 and in 1956 (the Supreme Court school desegregation
decision having been in 1954) and then in 1964, reported substantial
rises for both of the later years in the proportion of favorable attitudes;
and the southern attitudes were found to "vary according to the degree
of integration existing in a given area," with the official desegregation
measures occurring before the change in attitude. H8 Involved in this
146. See Andenaes. General Pre\'ention Re'\'isited: Research and Policy Implications, 66 J. Crim. L. & Criminology 338, 358, 36~363 (19;5): Andenae,. The Moral
or Educative Influence of Criminal Law, 27 J. Soc. Issues 17 (19il): Andenaes.
Genera] Pre\'ention - Illusion or Reality. 43 J. Crim, L.C. & P.S. 176. 179-180 (]95~):
Hawkins. Punishmenl and Deterrence: The Educative. Moralizing and Habitu3ti,'e
Effects, 1969 Wis. L. Rev. 550; Berkowitz & Walker, Laws and Moral Judgments, 30
Sociometry 410 (1967). as reprinted in Friedman & Macaulay, Law and the Be
havioral Sciences 200201 (1969). On some complexities in the problem of the
drinking driver, see Tomasic, Deterrence and the Drinking Driver (1977).
147. Berger, Equality by Statule 219 (re,'. ed. 1967).
148. Hyman & Shea Isley. Attitudes Toward School Desegregation. 21] Scientific
Am. 16-]8, 1923 Guly 1964) as reprinted in Schwartz & Skolnick, SocielY and the
Legal Order, esp. 487488, 490491 (1970). A Harris public opinion poll in August
1972 showed 42'70 of the American people favoring legalized aboniom for preg
nancies up (03 months, as againsl 4610 opposed; whereas the Apri] 1973 poll (lahn

C. Limits of Law

55

example is a related phenomenon: The conforming behavior of others,

especially those in one's own peer group, and even one's own conforming behavior, may tend to generate the appropriate approving attitude,HS I am reminded here of an experiment reported in the memoirs
of a British scientist, Sir Francis Galton. He had wondered why certain
idols, in spite of being ugly and grotesque, were worshipped by primitive peoples, and whether he could induce such an attitude in himselL
He selected a grotesque picture of Punch, set it up in a room of his
house, and daily went through a ritual of obeisance and prayer before
it. After several months he found to his surprise that he was experiencing a feeling of awe and reverence. He would catch himself turning
toward the picture when he passed the room, with an impulse to bow
and worship.
To get back to the study of desegregation attitudes: I am not
saying that studies of attitudinal changes in relation to other laws
and/or other circumstances are bound to come out the same way, or
that law is the most significant variable affecting such changes. Rather,
in the cautious words of a 1967 study: "There appears to be a comparatively small but nevertheless significant tendency for some people
to alter their views of the morality of some actions in accord with laws
specifying that these actions are legal or illegal. Knowledge of the
existence of these laws, however, does not have as much effect in
changing the moral judgments as knowledge of a consensus of opinions
among one's peers."150 (Emphasis added.)
Further on the racial problem, there are plenty of factors in addition to peer influence that can work against an accord between attitudes
and legal requirements. For example, provocation from violent elements in the civil rights movement seems sometimes to have diminished
favorable attitudes. So too, lack of positive support from prestigious
sources can act as a negative factor - as when President Eisenhower
declined to back the Supreme Court's 1954 decision with a strong
moral stand. His position was that the decision was the law of the land
and had to be enforced, but he pointedly declined to defend the COUrt
decision in moral terms. President Kennedy in the beginning of his
administration had a similar attitude, though he changed eventually
alrer the Supreme Court decision legalizing such abortions) showed a jump to 5210
in favor.
149. McConahay. in The Effects of School Desegregation Upon Siudenis' Racial
Altitudes and Behavior. 42 L. & Contemp. Prob., No.3, 77. 105 (1978) says it is
"now generally agreed" that by changing behavior we can change attitudes (and by
changing attitudes we can Change beha'\"ior): so, "[i]f in the desegTegated school the
students and teacheTs beha\'e as though they respect and feel favorably toward one
another. they can also come to feel thai way after a while, regardless of their inilial
attitudes."
150. Berkowitz & \\'alker, supra n.146 at 209-210; see also 212-214.

56

1. Some General Observations on Law and the Legal System

to a more positive position. It was particularly important. I think. to

get this national executive support for the decision at the crucial early
stage when a drastic social change was being initiated by law. Its abo
sence helped to fan the flames of resistance in the South even more
than did President Nixon's goslow position in the late 1960s and early
1970s.
So I repeat that the question of what limits apply to the law's
accomplishment of desirable goals is not answered by mechanical
application of any slogans. like "there oughta be a law" or "you can't
change human nature by law." Each problem stands on its own feet.
You have to investigate the significant facts in the particular problem
and ask the questions relevant to the limits that may operate on the
effectiveness of the proposed law or the proposed decision. Some
relevant questions and considerations are:
(a) What is the strength of the values or attitudes or drives with
which the law in question is inconsistent?l51 (Here. as with questions
later on. we must ask whether there is reason to think that the strength
varies with different individuals or classes of individuals.)'" The
problem is obviously greater. for instance. where human drives and
widely enjoyed pleasures are involved. like sex. alcohol. and other
drugs. The problem is also complicated by the fact that reinforcement
of or opposition to attitudes. drives. etc. may be received: (I) from
the rest of an individual"s value system. including moral and religious
values. his general tendency toward social conformity and toward
conforming to the law (but if he has a strong proclivity both for the
conduct prohibited and for conformity with law generally. then heaven
help him); (2) from values and attitudes on the particular subject. of
others in the SOciety nationally. regional h'. and locally. including
molders of opinion such as newspapers. educators. clergy. the President.
and those in his peer group; (3) from his belief that the prohibited
conduct works no serious harm to others. Also pertinent. as we ha\'e
seen. would be the question whether situations of great stress could be
expected to occur to such an extent that the legal requirement could
151. This is relaled to the (acLOr that is discussed in Zimring &: Hawkins. The
Legal Threat As An Instrument of Social Change, 2i J. Soc. Issues 33 (197}) as
"\'ariations in [he nature of [he cuslom." They discuss this faclor in terms of the
custom's "utiHtarian and moral significance" to its adherents; extent of its popular
suPPOrt; visibility to ellforcement agencies of the pnctiee of the cuslom: extent to
which the legal change ahers one's expectations of ochers' nonconformity to the
custom; extent to which the change meets current community needs. The two other
factors discussed are: variations in the social characteristics of the individu::J.ls and
groups adhering to the custom before it was forbidden: and variations in the way
in which the threar of punishmem is carried out.
152. "It is seductively easy to build elaborate theories of how group!'; will JeaC"t.
without regard to the complexity of human personalilY that psychological sLUdies
are beginning to uncO\'er:' Burman &: Harrell-Bond, The Imposition of Law 6-7
(1979).

C.

Limits of Law

57

not be influential. and judges and juries could be expected to be

lenient.
(b) What techniques would be used to establish and enforce the
prohibition or requirement in question? (I) Legislatures. courts. executives. and administrative agencies do not all have the same prestige.
though perhaps the ranking is different on different subjects and in
different places. For instance. there are those who believe that a congressional statute. implementing the Fourteenth Amendment and
requiring racial desegregation in the schools. would have had greater
public acceptance than the Supreme Court"s decision. (2) Is time allowed for a transi tion period. and does such allowance make acceptance
more likely. or less so? The Supreme Court used this technique in the
school segregation case by allowing the decision to be implemented by
the policies of the local district courts. using "all deliberate speed."
Some argue that the technique in this instance was less effective in
gaining acceptance of the decision than the Court's issuance of its own
plans for prompt desegregation would have been. (3) Would enforce
ment personnel be enthusiastic. well financed. and really committed.
or are they likely to be tolerant. apathetic. corrupt, or starved for
funds?l" (4) Would enforcement be hampered for lack of complainants?
This is a factor that, together with lack of enforcement enthusiasm, is
important in the case of "crimes without victims," like prostitution,
gambling, fornication, drugs, and consensual homosexuality. (5) Will
there be a perception by potential violators, of the change in law or
penalties, and also a perception of effective enforcement?l54 (6) Is it
possible to point to "models" of compliance, e.g., communities where
the legal change has worked successfully? (7) Would the law's expected
benefits be outweighed by the costs, practical difficulties, and risks in
administering it - such as possibilities of fraud or other abuse, diffi
culties of proof. a flood of litigation. and interference with internal
affairs of private groups? In this connection. will the objections to one
form of legal sanction be obviated by resorting to another fom1? Or to
non prohibitory techniques, such as subsidies or other rewards for
compliance?
(c) To what extent do we have the knowledge necessary to answer
not only (I) the fact questions relevant to the.consequences and desir
ability of the proposed law, but also (2) all of the other questions?
The more you study the law's problems, the more you will appreciate
the significance of our relative lack of the necessary reliable knowledgc.
The law must continue to make impossible demands on a social sciencc

153. On the importance DC enforcement (or effeclh't' reduction of drunk driving

Lhrough higher penalties. see Andellaes. General Prevention Re\'isiled. SUP'-Q n.116
at

353.
154. See on this, id. aL 354 el seq.

58

I. Some General Observations on Law and the Legal System

that toO often is insufficiently developed to give dear and conclusive

answers.

D. Agencies and Techniques of Law

By "agencies" I mean the judicial, legislative, executive, and administrative agencies that carry out the official business of law, and also the
public. Consider first the na ture of the judicial agency.
I.

The Courts
a. Structure

I'll begin with the structure of the court system, and largely confine myself on this point to the state courts, since the structure of the
federal court system will be developed in Chapter 2.
Each state has a triple.layered hierarchy of courts. On the bottom
are those dealing with the petty cases in which small monetary amounts
or minor criminal penalties are involved. In a non urban area, the judge
of such a court is likely to be called a justice of the peace, and his job
might be only a part-time one. In the cities he is likely to be called a
magistrate or a judge and might be attached to a specialized court like
police court, traffic court, or small claims court. These petty or "inferior" courts are generally not "courts of record"; they make no detailed
record of the proceedings beyond the identification of parties, lawyers,
and disposition of the case. The procedure may be rather informal. The
losing party may appeal to the next level of court, but not through
what we usually mean by appeal, since typically a completely new trial
is involved rather than appellate review of the record made in the
lower court (there will usually have been no such record there).
This next level of court would be known as a "trial court of general jurisdiction," authorized to hear civil and criminal cases generally.
Unlike the petty court, it is a court of record; its procedure is quite
formal; it is not confined to, and indeed is usually prevented from
entertaining, the pett), cases. It is called perhaps most often a "district"
court or "circuit' court, though in some places it has such other names
as "superior court" or "court of common pleas." (New York State
creates a special confusion by calling it the "supreme court" - which
elsewhere of course means the highest appellate court - and recognizing both this trial part of its supreme court and an appellate part which
is an intermediate court, the final appeals court being called the New

D. Agencies and Techniques of Law

59

York Court of Appeals.) Besides the trial COUrt of general jurisdic

tion - or, in some states, departments or divisions thereof - there are
specialized courts like those handling probate matters, or divorce and
other domestic relations issues, or juvenile problems.
The trial court of general jurisdiction, as I have indicated, exer
cises some appellate jurisdiction when it takes "appeals" from the
petty courts. But I've said that those appeals are usually heard as completely new trials (trials "de novo"). To a limited extent, the trial court
of general jurisdiction also exercises the more usual form of appellate
jurisdiction - for instance, it may be authorized to review administra
tive agency decisions on the record made before the administrative
agency, as distinguished from holding a trial de novo. In such a case
the agency fact findings, while not conclusive, will be upheld by the
court in the absence of arbi trariness.
Third and uppennost in the hierarchy are the appellate courts.
In most states, there is only one appellate court, and that is the highest
court of the state. It hears appeals from the judgments of the trial
courts of general jurisdiction, and either affirms or reverses, or occa
sionally modifies, the judgment. There are some cases in which a Ii tigant seeks to control the trial court's action not by waiting to take an
appeal from its judgment but by seeking directly in the highest court
an "extraordinary writ" directing the lower court to do something
(e.g., grant a change in the venue or place of trial, or justify its order
holding someone in allegedly illegal custody) or refrain from doing
something (e.g., from continuing to exercise jurisdiction in a case).
In about a third of the states, there are intermediate appellate
cOurts. Their role varies in the different states. A state may provide
that the appeal from a trial court goes to this intermediate court, and
that a further appeal is then permissible, after unfavorable judgment,
to the highest court. The state may say that in some other classes of
cases (deemed more serious) the losing party in the trial court can skip
the intermediate court and appeal directly to the highest court. In still
other cases, the appeal from the trial court may be allowed only to the
intermediate court, and an additional appeal to the' highest court is
either not allowed or allowed only for special reasons, or is left to the
discretion of the highest court to allow. This limited-review type of
provision is being increasingly suggested as a means of coping with the
overburdened dockets of the states' highest courts.
A prerequisite [or review by the United States Supreme Court of
the decisions of the highest state court that is empowered to decide a
particular case is that the case comes within the "judicial power of the
United States" as outlined in the Constitution. However, Congress in
the exercise o[ its constitutional power to determine the appellate
jurisdiction of the Supreme Court has made most such review discre
tionary - known as review by writ of certiorari. The Court's review

60

Some General Observations on Law and the Legal System

I.

of a state court decision can be demanded as a matter of right, accord

ing to Congress, only when the highest state court empowered to decide
the case has held a federal law or treaty invalid, or upheld a state law
against the claim that it violates the Federal Constitution, laws, or
treaties. 155

b.

Selected Operational Features and Problems

Turning from the structure of the courts to aspects of their functioning, I'll confine myself to five such matters, though perforce dealing
with them sketchily: (I) court delay, (2) selection and tenure of judges,
(3) the limited role of the court itself in the disposition of litigation,
(4) access to courts and other modes of dispute resolution, and (5) the
courts' new administrative involvement in reforming public institutions.

(I)

Court Delay

The problem we hear most about today is delay. It is not exactly

a new problem. "Hammurabi denounced it; Shakespeare immortalized
it: HamJet, compiling his dolorous list of the burdens of men, sand
wiched the 'Iaw's delay" between the 'pangs of dispriz'd love' and the
'insolence of office.' English chancery delay made Bleak House one of
the best known edifices in English literature and made Dickens a lead
ing law reformer. Paradoxically, German court delay, scholars tell us,
led Goethe to give up the law for Jetters."". But never before has there
been such a pervasive concern over the problem, coupled with concerted
efforts to find solutions.
One type of delay is caused not by the court system but by the
lawyers: The court is ready for trial but the lawyers want postponement. Lawyers often feel unable to meet the date set for trial because
of conflicting dates for other trials or other legal business. (This would
be somewhat less of a probJem if trial litigation were not such a spe
cialty, concentrated in the hands of a fraction of the total bar.)
Similarly, a Pittsburgh study showed that in more than half of the
randomly picked cases, lawyers added more than a year to disposition
of the case, by tardiness in filing papers. Although many cases are
negotiated and settled by the parties after filing suit and long before
155. Feder::!} court organization and jurisdiction is analyzed in Chap. 2 herein
under B, 3 & 4.
]56. Rosenberg. Court Congestion: Status, Cause... and Proposed Remedirs, in
Jones. ed .. The Courts, The Public and the Law Explosion gO (1965).

D. Agencies and Techniques of Law

61

possible trial, many others that could be so handled' are delayed in

settlement until close to trial or after the first day of trial, in order to
put bargaining pressure on the other side - as well as, in some in
stances perhaps, in order for the lawyer to collect a fee for a day in
court. 157

The measures proposed for dealing with delay include tightening

up the permission for postponements, and other devices aimed at
lawyercaused delay.lOB But principally, reforms are aimed at reducing
courtsystem delay. One general approach is to reduce the volume of
cases handled. For instance, it is said that eliminating federal diversityofcitizenship jurisdiction (to be discussed in Chap. 2) would mean
substantial relief to the federal courts and an easily borne increase in
business for the "multiplicity of state forums available to absorb the
cases:'109 A method of getting cases out of the courts altogether (on the
trial level) is to shift some types of cases to administrative tribunals;
what has already been done in the area of workmen's compensation
has long been recommended for auto accident cases, which are in good
part responsible for court congestion and delay.'60 A similar but
broader proposal is for the creation of "new administrative tribunals
of general jurisdiction that would address the repetitious factual issues
inherent in the litigation of claims under a pool of specified regulatory
and social service legislation."'' Also aimed at reducing the flow of
cases to the cOurts is the suggestion that proposed legislation should

157. In support of this paragraph, see id, at 35-37.

158. Id. at 45; Sipes el al., Managing to Reduce DeJay 1220 (National Center for
State Courts, )980). A growing number of courts are assessing court costs and at
lorney fees against parties who unreasonably prolong the proceedings through POS[ponements or unnecessary use of "discovery" procedure (see Chap. 2 herein between
nn. 186 &: 187 and Postscript herein, n.18) or allowing eVen pre-judgment interest to
be awarded to victorious plaintiffs, "in the hope of encouraging insurance companies
and corporations to expedite their defense of damage suits." Natl. Law. J" Feb. 9,
1981, at I.
159. Marcus, Judicial Overload: The Reasons and the Remedies, 28 Buffalo L.
Re\,. lIt. 139 (1979). On federal diversity jurisdiction. see Chap. 2 herein between
nn, 85 I'< 88.
160. Another kind of shift away from the courts for the auto cases is through
the "nofault" plans now gaining support, under which the major costs suffered in
most auto accident cases would be compensated by insurance policies without the
necessity of a court suit. See studies cited in n.67 supra.
161. Marcus. supra n.159 at 135-136. See id. at 121 for a listing of some fairly
recent federal legislation that can be expected to generate substantial COUrt litigation - the Mine Safety Act. for instance. being expected to generate more than 20,000
full jury trials each year. Even where administrative agencies already exist. the
judicial review burden can sometimes be alleviated. Thus, it is argued that Congress
could halve the National Labor Relations Board caseload in the COUTts of appeal by
providing that the NLRB orders will be immediately enforceable unless the aggrieved
party promptly initiates a review proceeding (instead of the present requirement
that the Board petition the court to enforce its order). Id. at 140.

62

I.

Some General Observations on Law and the Legal System

be accompanied by a "'litigation impact statement" assessing the bill's

effect on judicial administration. ' 2
A second approach to courtsystem delay is to increase the manhours spent in judging. Thus, proposals are being considered to increase the number of judges, and/or to make judges put in a longer
workday, and with shorter vacations, and/or to use pseudojudges. By
the latter I mean lawyers like the well-known "'auditors"' used in
Massachusetts auto cases - and the "'arbitrators" used in Pennsylvania
small claims cases - their determinations being subject to possible
(but in practice infrequent) review by a regular judge; or the use of
that kind of non.judge personnel for handling pretrial conferences
with the Iitigants. l a An alternative system, in which the adjudicator
need not be a lawyer, is that of "'neighborhood justice" tribunals. , ..
Other approaches to a more efficient administration of judicial
business have been suggested. They include shifting cases from overly
busy courts to less busy ones; judicial appointment of impartial medi
cal experts when the extent of the plaintiff's injuries is to be disputed
by opposing experts - an appointment that often helps induce settlement; saving time by encouraging waivers of jury trial in civil cases,
or by speeding up the process of jury selection, or getting the state
to abolish the jury in state civil cases (University of Chicago studies
suggest that a juryless trial is about "40% less timeconsuming than
a jury trial of the same case,"l.' or putting it the other way, a jury
trial is one and two-thirds times as long);l using videotape;'.' employing modern managerial methods, including computers, to streamline
the administration of the docket;16S and two additional techniques,
162. Jd. at 140141; HeaTing on Judicial Impact Statements. Before Subcomm.
on Jurisprudence and Government Relations. Senate Judiciary Comm., 96 Cong., 1st
Sess. (1980).
J63. See Rosenberg. supra n.156 at 4142, 5154; Marcus, supra n.159 at 134.
Johnson. Kantor & Schwartz, Outside (he CoUTtS: A Survey of Di\'ersion Ahernali\'es
in Civil Cases (1977).
164. See Postscript herein at n. 16-17; Marcus, supra n.159 at 134, 135.
165. Kahen. The Dignity of the Civil Jury. 50 Va. L. Rev. 1055, 1059 (1961).
166. Ka]ven's translation of the fi~t form of statement to the second ghoes him
the mathematically erroneous figure of one and one-half rather than one and twothirds. ld. at 10591060, n.l2.
167. An Ohio court's use of videotape as a medium for prerecording testimony
in civil cases and presenting the tape to a jury is said to reduce delay drastically.
McCrystal & Maschari, WiJI Electric Technology Take the Witness Stand, II U. Tol.
L. Rev. 239 (1980).
168. See Nagel, Neef &:: Manshaw, Bringing Management Science to the Courts
to Reduce Delay, 62 Jud. 128 (1978); Sipes et al.. supra n.158; Symposium. 1 Just.
Syso 1- 131 (1978); LaBar, The Modernization of Court Functions: A Review of Court
Management and Computer Technology, 5 Rutgers J. Computers & L. 97 (19i5):
Mermin. Computers, Law and Justice. 1967 Wis. L. Re\"o 43. 5051; Kozak. Foster &
Lounder. Bibliography on Computer Use in Couns. 13 Law & Computer Tech. 65
(1980).

D.

Agencies and Techniques of Law

63

the advocacy of which has been somewhat dampened by recent studies:

the greater use of pretrial conferences,'". and the "split trial.""o
What about delay in criminal cases? There is congestion in the
criminal courts in spite of significant trial-eliminating factors, such
as the fact that about three-quarters of the defendants plead guilty,
and the fact most minor traffic offenses get disposed of by simple
forfeiture of bail. One of the most tragic facts about criminal case delay
is the impact on the indigent defendant, who waits in jail because he
could not raise bail. Solutions involving a careful loosening of bail
requirements are being experimented with.

169. The pretrial conference between the judge and the opposing lawyers has
long been viewed as salutary. It is a preview of the case that helps clarify and
simplify the issues. And it has been thought to shorten the trial and facilitate a
.settlement of the case without trial. The latter two effects are now subject to some
doubt. as a result of empirical studies. The larger cases, in particular, resist settlement in spite of pretrial. Trials were found to be no shorter because of pretrial, yet
the conferences do absorb an appreciable amount of the judge's time~ so these would
seem to be a nCg:ltive _contribution toward solving the problem of delay. To be
weighed against this is the improved quality of the trial where there had been a
pretrial conference - apparently because the conference had improved the lav.ryer's
understanding of problems to be met and methods to be followed. Also to be
pondered is the fact (hat plaintiff's recoveries were found to be higher when there
had been a pretrial. After these facts had been revealed by (he Columbia Project
for Effecth'e Justice in a study which had been requested by Chief Justice Weintraub of New Jersey. (he New Jersey Supreme Court changed its rule reqUiring
pretrial conferences in personal injury suits. and made the conference optional in
auto accident cases. See. in support of this paragraph. Rosenberg. 'supra n.15G at
4951. For a federal judge's call for strengthening pretrial procedures. see Peckham.
The Federal Judge 35 a Case Manager: The New Role in Guiding a Case from Filing
to Disposition, 69 Calif. L. Rev. 770 (1981).
.
170. In such a trial. instead of e\'idence being admitted on both the liability
issue and the damage issue. there is no evidence admitted on damages until after
there has been a detennination of liability. This can save considerable time (some
say about 20% of total trial time. some say "substantially less"), because (1) juries
in personal injury suits bring in verdicts of no liabiliq' about 40% oC the time, and
(2) even after a verdict of liability. the split. trial system might sa\'e time that would
normally be spent on evidence of damages, since in some cases the defendanr
chooses to settle after the liability verdict - i.e., no evidence is taken on damages.
And here. as in the case of the pretrial conference technique. studies showed an
unexpected substantive effect of the procedural change. This time the effect was to
fa\'or the defendant - i.e . in split trials, there were substamially more \'erdicts of
nonliabiliry (probably because of the absence of the emotional impact on the jury,
on the liability issue. than one might expect from e\'idence on damage suffered by
the pJaintill). Rosenberg, supra n.156 al 46-49.
In short. "there is no acceptable evidence that any remedy [for delay] so far
devised has been efficacious to any substantial extent. Only a few of the new measures
ha\'e worked e\'en to a modest extent, and some of them have been positively
counter-producth'e on the efficiency scale. More important, many of them ha\'e had
unsuspected side effects i'1 changing the outcome of appreciable numbers of Jaw
suils. A major lesson of this chronicle is that progress in coping with the old problem
of court deJay wjIJ have to come from marshalling relief measures in groups. not
from a one-injection miracle cure. There is no such panOlcca." Id. at 55.
For an esS<l)' by the Direclor of the Federal Judicial Center on research related

64

1.

Some General Observations on Law and the Legal System

But the delay problem in the criminal case is not so much the
civil case problem of speeding up the court process between the time
the initial papers are filed and the time the case is disposed of. Rather,
one of the chief problems is how more time can be spent on the minor
criminal cases that now may receive a minute or less of time per case
in the assembIy.line treatment of defendants who have pleaded guilty.
An expansion in the number of minor criminal court' judges seems
imperative. It has been further suggested that some load can be re
moved from the criminal courts by (I) removing criminal penalties
from some types of offenses and substituting other approaches such as
civil monetary penalties; and (2) expansion of "medical, psychiatric
and other treatment facilities so as to reduce by cure the volume of
persons processed through the criminal courts because of addiction
to alcohol or drugs:' 17 '
Finally. what can be done about congestion and delay in the
appellate courts? Among the many suggestions that have been made.
let me select a few for brief discussion. First is increasing the number
of appellate judges. This could take the form of enlarging the highest
court and/or creating or enlarging an intermediate appellate court
(which most states still do not have). There are some limits here. Thus
it has been observed that in California. "the number of intermediate
appellate courts has been increased from three to five, and there has
been an even greater increase in the number of judges sitting on those
courts. To push the California development a few steps further, suppose that there were ten or fifteen intermediate appellate courts in
that state ten years hence. In such circumstances, what were once
authoritative appellate tribunals, subject to occasional review by the
Supreme Court of California. would have been converted into a judi
cial Tower of Babel. The proliferation of utterances could divest any
one of these courts of significant authority."l7'
Another suggestion is to make some classes of cases not appealable
at all. or reviewable only at the discretion of the appellate court. This
device is now used in some states with intermediate appellate courts
when the appeal to the highest court, for at least some classes of cases,
is precluded or else left discretionary with that court. But extending
this. in states with no intermediate appellate courts, to cases of appeal

to delay and other aspects of judicial administration, see Le\'in, Research in Judicial
AdminiSlration: The Federal Experience. 26 N.Y.L. Sch. L. Rev. 237 (1981).
171. Barren. Criminal Justice: The Problem of Mass Production. in Jones. ed .
supra n.l56 at 121123.
172. Hazard, Afler the Trial Court - The Realities of Appellate Re\'iew. in
Jones. ed., supTa n.I56 at 81. Set' also Rosenberg. Contemporary Litigation in the
United States, in Jones. ed .. Leg:I1 Institutions Today: English and American Approaches Compared 171175 (1977).

D. Agencies and Techniques o( Law

65

from the trial court to the highest state coun, is going further than we
presently seem prepared to go. It is not that the Constitution requires
at least one appeal; it does not. But I think both the public and the
profession do want a system of at least one appeaJ.17S An additional
objection centers around criteria for the class of case that would be
excluded from appeal. If, for instance, the criterion were on the basis
of how much money was at stake in the lawsuit, or on the particular
subject matter involved (e.g., auto accidents), this might be attacked
on the grounds that (I) importance of the legal points to be appealed
has no necessary relation to money involved or subject matter, and
(2) the criterion might be unconstitutionally discriminatory, denying
to those excluded the "equal protection of the laws:
One further device presently used to cope with appellate conges
tion is the omission or attenuation of one or more of the usual steps
in case disposition. Thus, a preliminary screening procedure may reo
suit in a "summary disposition (without briefs and argument); judges
may vote on some cases without a prior discussion; they may exclude
or limit the opportunity for oral argument; they may issue decisions
with no supporting opinions or only brief memorandum opmlOns.
Such devices raise serious questions about the quality of appellate
justice. 1H
At least some of the reasons '75 for court overload are likely to
persist, and so are the techniques of coping with the problem, not all
of which have been canvassed above.17 6
173. See Hazard. supra at 83. In the federal system, there is such all appeal as of
right to the coun of appeals. and the bulk of the Supreme Court's review is discretionary. 1':onetheless the caseJoad of the Supreme Court is so great that proposal~
ha\'e been made for a new National Coun of Appeals to screen cases for which
Supreme Court review is sought. See Stern &: Gressman, Supreme Coun Praclice.
1.16 (5th ed. 1978) and the articles cited therein for and against the proposal. and
Chap. 2 below between nn. 48 & 51.
174. Sec Rosenberg. supra n.172 at 175: Carrington, Crowded Dockets and the
Courts of Appeal. 82 Han. L. Re'. 542. 558561; 569574 (1969). Almost a lhird of
the cases in the (edenl appellate cOUrls are presently being decided without the
opportunity for oral argument, and approximately the same percentage are delivered without opinion." Marcus, supra n.159 at 118. See also ABA Task Force on
Appellate Procedure, Efficiency and Justice in Appeals: Methods and Selt-cled MJterials (1977) (Joose-Ieaf); Reynolds &: Richman, An Evaluation of Limiled PubliC:llion in the COUT! of Appeals: The Price of Reform. 48 U. Chi. L. Rev. 573 (1981);
McCree, Bureaucratic Justice: An Early Warning. 129 U. Pa. L. Rev. 777 (1981).
175. Marcus. supra n.174. argues that the reasons for judicial o\'erload include
sociological factors such as the decline in traditional modes of social control and the
growth of rights consciousness. legislative and judicial expansion of access to the
courts. and economic incentives such as the award of attorneys' fees" (at 128). For a
less confident treatment of reasons, see Ca.rring1on, supra at 543-547.
176. See for further approaches to appel1Jte court congestion. Wasby. Marvell &
Aikman, Volume and Delay in State Appellate Courts (1979); Rosenberg. Carrington &: Meador. Justice on Appeal (19i6); Symposium. Federal Appellate Jus1ice in an
Era of Growing Demand, 59 Cornell L. Re\". 571 (19i4); Carrington. supra n.17:I.

66

I. Some General Observations on Law and the Legal System

(2)

Selection and Tenure of Judges

American practice in the selection and tenure of judges falls in to

two groupings. The system for federal judges is appointment (by the
President, with the advice and consent of the Senate) and life tenure
(i.e., "during good behavior"). The system for state judges in a majority of the states!77 is election and limited tenure (for a fixed period
such as six years). Even in the states the earliest preference was for
appointed judges, but populist currents after the 1830s swung the
practice toward the elective system.
The two systems are not as different as they seem. The appointment system is based indirectly on the elective process (election of the
appointing executive Imd of the legislative representatives who must,
in most of the appointive states, approve). Conversely, the system of
electing judges can be viewed as a system of de facto appointment:
(I) In practical effect, judicial elections are usually perfunctory ratifi
cations of "appointments," i.e., nominations by party leaders, except
when judges run without party labels. (2) A large proportion of elec
tions come after a vacancy (due to death or retirement of an elected
judge) had been filled by interim appointments by the governor - and
this means, in view of the tradition favoring election of a sitting
judge, that the governor's interim nominee is generally elected at the
subsequent election.
But while there are elements of both election and nomination in
the two systems, a combination of the elements in a different kind of
mix has been adopted in some states and is steadily gaining ground.
Often referred to as the "Missouri Plan," it has long been supported
by the American Bar Association and by the American Judicature
Society. Though there are variants of the plan, essentially it involves:
(I) initial appointment by the governor (not merely for vacancies in
an elected term) from a panel of names submitted by a commission
composed of representatives of the bar, judiciary, and the public;
(2) the incumbent judge's running for election, after expiration of a
specified period, but on his own record - i.e., not against any rival.
The plan would normally be instituted by legislative action, but it
has also been done by executive order of the governor.!78
Why the dissatisfaction with the purely elective system? There is,
.177. For a succinct description of the numbers and varieties of slale plans. see
Adamany & Dubois. Elecling Slale Judges. 1976 Wis. L. Rev. 731, 769.
17S. In Missouri, [he governor appoints three laypersons to the commission.
which also has as members the chief justice and three lawyers elec!ed by the Slale
bar. The commission submits three names for the office and the governor must
select one, for a term of one year, afler which the judge Tuns for election withoul a
rival candidate. for a full term. In the California Plan. the commis... ion is composed
of the chief justice. presiding judge of the district courl of appeal. ami anorney
genera1. It submits (he name of on1y one indi\"idual. If appro\'ed by the go\'ernor.
the individual serves for one year. then stan ~s for election on his record. as in

D. Agencies and Techniques of Law

67

first of all, substantial opinion that the selection process does not pay
primary attention to professional quality of the judges. Moreover, the
public is thought not to cast an intelligent vote, in view of its limited
knowledge of legal matters and of the qualifications of candidates. It
is further argued that while in office the elected judge is more prone
to allow improper political considerations to influence his judicial
judgment, and as election time nears, feels the need to take time away
from his judicial duties for campaigning or political fencemending.
However, the elective system continues to have strong adherents,
particularly among political scientists. They generally prefer the direct
popular control associated with elections, to the indirect popular con
troIs involved in gubernatorial appointments and the increased private
bar influence119 under the Missouri Plan. Their studies of alternatives
like the Missouri Plan are claimed to show that" . . . selection systems
themselves have little impact in guaranteeing that selection procedures
will be free from partisan or interest group politics, or that decidedly.
superior judges will be selected for office."180 Thus, studies are cited
for the proposition that educational qualifications of state trial and
appellate judges selected under various plans (appointed by governor
or legislature, or selected under the l'vlissouri Plan, or elected in parti
san or nonpartisan elections) did not vary much with the type of
plan;'.' nOr did "the evidence . . . establish a close link between
judicial selection and judges' voting.''.2 As for reduction of political
partisanship, "[e]ven in Missouri plan states, the selection commissions
which submit lists of judicial candidates for gubernatorial considera
tion are usually dominated by members of the Chief Executive's party.
Hence the Governor is ordinarily able to name one of his fellow parti.
sans to the bench.''.3 In addition, the political scientists tend to object
to the denigration of political considerations. They point out that a
Missouri. If the governor rejects the name, or if the approved candidate fails in the
election, the procedure is follO\\o'ed over again. Under both plans. the solo elections
ha\'e been generally successful. Abraham, Justices and Presidents 1314 (1974).
179. The opportunity for greater bar influence is not always fulfilled. See Glick.
The Promise and the Performance of the Missouri Plan: Judicial Selection In the
Fifly Slales, 32 U. Miami L. Rev. 509, 536537, 539540 (1978).
180. [d. al 539.
181. Adamany &: Dubois, supra n.l77 at 773. An interesting sidelight on :.he
significance of educational qualifications and other measures of achinemem is
furnished by the responses of state trial judges, both new and experienced. to
queries on the desirablt attributes of a judge. They rated as low in importance
such qualities as high law school record; high earnings in law practice; acti\ity in
civic, community. or professional affairs; or past honorable political aClivity. The)"
rated the following as. having the highest imporlance: moral courage, decisiveness.
reputation for fairness and uprighmess, patience, good health, and consideration for
olhers. Rosenberg, The Qualities of Justices - Are They Strainable? 44 Tex. L Rev.
1063, 10661072 (1966).
]82. Glick, supra n.179 at 534. See id. at 53]539.
183. Adamany & Dubois, supTa n.I77 at 774. See also Glick. supra n.179 at
521523.

68

I.

Some General Observations on Law and the Legal System

judge's policy orientation is relevant; and an index of it, though not

an unvarying one, is his party affiliation. IB4 The latter has traditionally
been thought to be relevant and legitimate in gubernatorial appoint
ment of state judges and presidential appointment of federal judges,
provided the candidate is otherwise "qualified."
The federal appointment system yields judges who, according to
professional opinion, are of generally higher aliber than the state
judges. This does not mean that no state judge measures up to the
quality of the best federal judges. But it means that judges appointed
to life-tenure judicial posts carrying substantially higher prestige and
compensation, and screened by the President and the Senate with cooperation from an American Bar Association committee, are more
likely to be quality judges than are state judges selected by currently
orthodox methods. 'BS Some poor ones do slip through the screenbut fortunately, not because of any acceptance of Senator Hruska's
deathless remark in defending President Nixon's abortive Supreme
Court nomination of Judge Carswell: that mediocrity, too, deserves
representation on the Court. There have been not only some mediocre
184. Adamany & Dubois. id. at 761 768, 772: Nagel, Political Party Affilialion and
Judges' Decisions, 55 Am. Pol. Sci. Re\". 843 (1961); 'Wormuth & Rich. Polilics, the
Bar. and the Selection of Judges, 3 Utah L. Re\". 459 (1953).
185. In the President's nomination of federal district and courL of appeals
judges. the three major influences have usually been those of (1) inleresled political
leaders, especially the home-state Senators of the nominee's political party (their
preferences WOUld, by what is called "senatorial courtesy." be genera]])' respected
in the Senate); (2) ratings by the American Bar Association's Standing Committee on
the Federal Judiciary, established in the mid-194Qs and exercising substantial influence since the mid-1950s; (3) advice from sitting members of the bench. In the
case of Supreme Court nominees, while these influences are present and he is
ad"ised by the Allorney General. the President feels more free to make an independent choice. Abraham. supra n.l78 at 15-40 (1974).
Under President Carter, the 1978 Omnibus Judgeship Act (92 Stat. ]629)
authorized the largest expansion of the federal judiciary in the nation's history.
creating 11i new district judgeships and 35 additional court of appeals seals. The
Carter policy favoring minority appointments resulted in his appointing more blacks.
Hispanics. and ....'ornen than any other President. Of all his nominees to the federal
bench, 62.5% were rated by the ABA as either "exceptionaUy well-qualified" or
"weJl'qua]ified" (the rest were "qualified"; none were in the fourth category. "not
qualified',), a somewhat higher combined percentage than for Eisenho"'er or Ken
nedy, and substantiaJIy higher than for Johnson, Nixon. or Ford. Congo Q., OCl. 27.
]979. at 2418. Under a Carter Executi"e Order, "all circuit [court of appeals] judge,
ships had 10 be filled from names submitted by nominating commissions" appointed
by him and consisting of "a mix of lawyers and laymen. [See Berkson & Carbon, The
U.S. Circuit Judge Nominating Commission (1980. Under pressure from both the
president and the Attorney Genera] . . . more than half the Senators set up similar
nominating commissiom for district judgeships," Nat. L.J.. March 30. 1981, at i.
In the Reagan administration, "there is no pressure on the senators to ust' IDt'rit
selection screening panels, nor [0 affirmati\'eiy seek out women. minorities and
lawyers outside the mainstream of corporate la ..... practice . . . . Senate Republicans
. . . insisted that the new system ..... ill be no more political than Mr. Carter's pilln.
under which nearly 98% of the more than 260 judges appOinted were Demccrats."' [d.

D.

Agencies and Techniques of Law

69

but some actually corrupt federal judges. The most celebrated instance
was that of Judge Manton of the Second Circuit Court of Appeals,
who in 1939 was convicted of selling justice. It was he who argued,
ingeniously and ingenuously, in his appeal to the Supreme Court, that
"it serves no public policy for a high judicial officer to be convicted of
a judicial crime. It tends to destroy the confidence of the people in
the courts."l.S And it was he of whom Thomas Reed Powell observed
that he was "the finest judge that money could buy" But as Hurst puts
it, "over the years the Instances in which even a substantial charge of
corruption was raised against federal judges were trifling." And "when
all the state causes ct!/ebres were added together their total, like that
in the federal courts, was trifling," though there was as yet no compre
hensive study of corruption in the state judiciary.l.7
In addition to being criminally prosecuted for his derelictions, a
judge may of course be removed from office. But the process for federal
judges, and generally for state judges, is the cumbersome one of im
peachment by the legislature. In recent years there has been much
debate over the possibility of removal by other means, including exer
tion of pressure for resignation, through the medium of a judicial
commission. In the federal sphere, the commentators have clashed over
whether legislative impeachment is constitutionally the exclusive
method of removal, and whether it is so even for misbehavior other
than the constitutionally specified "high crimes and misdemeanors: ' .'
Persistent complaints about judicial neglect of duties, favoritism,
drunkenness, arrogantly high.handed courtroom behavior, and the like
have led the states, starting in the early 1960s, to adopt nonimpeach
ment plans for control of judicial misconduct: Investigatory agencies
can recommend sanctions, from censure up to removal, to a high state
court or a special courts commission for final action. ' .' Debate on the
186. Borkin. The Corrupt Judge 23 (1962).
187. HurSl, The Growth of American Law 142 (1950).
188. See e.g., Kaufman, The Essence of Judicial Independence. 80 Colum. L. Rev.
671 (1980); Kaufman. Chilling Judicial Independence. 88 Yale L.J. 681 (1979); Berger.
Impeachment of Judges and Good Behavior Tenure. 79 Yale L.J. 1475 (1970);
Kurland, The Constitution and the Tenure of Federal Judges: Some Notes From
HiSlory. 36 U. Chi. L. Rev. 665 (1969); S'olz. Disciplining Federal Judges: Is 1m
peachmen' Hopeless? 57 Calif. L. Rev. 659 (1969).
189. Penn, More States Monitor Members of Judiciary for Improper Conduct.
Wall Sl. J" Aug. 25. 1980, at 1. The California Commission on Judicial Performance,
composed of lawyers, judges. and lay citizens, was created in 1960 by a state constitutional amendment to investigate judges suspected of incompetence or misconduct
and to recommend removal. if appropriate. In 1979 there was a televised and otherwise publicized Commission hearing on whether some jUdges of the California
Supreme Court had purposely delayed the court's issuance of a controversial decision
(on constitulionalily of a law making a prison term mandatory for anyone using a
gun while committing a felony) until after the election. in order not to jeopardize
the election chances of then Chief Justice Rose Bird. Under the California system,
Governor Brown's prior appointment of Ms. Bird was subject 10 voter appro\"al at

70

I.

Some General Observations on Law and Ibe Legal System

federal level finally resulted in a comparable federal law. effective

October I. 1981. authorizing judicial commission pressures and sane
tions short of removal,' thereby making the constitutional issue less
acute.

(3)

Limited Role of the Court Itself in the Disposition

of Litigation

Considering all the disputes that seem headed for resolution by

courts (rather than by administrative agencies or arbitrators). to what
extent is it the court's action that resolves those disputes? The small
ness of the percentage the courts resolve is manifested by the following
phenomena noted by Hurst as true of American courts since mid
twentieth century:l.l (I) In personal injury situations which might
have produced claims in court. only about one fifth resulted in court
claims; of these claims. only 5 percent actually went to trial. and of
those only about half ended in a decision by judge or jury.l.' (2) "Two

the general election. The story of the controversy and the judicial testimony at the
hearing. with its revealing details of decision making procedure by a leading state
appeIlate COUTt, are presented in Stolz, Judging Judges (1981).
190. The Judicial Councils Reform and Judicial Conduct and Disability Act of
1980 (94 Stat. 2035 (1980), 28 U.S.C. 372(c): for committee reports, see 4 U.S. Code
Cong. & Ad. News 4315 et seq. (1980 authorized anyone to lodge a complaint with the
clerk of the court of appeals of the circuit alleging that a federal judge or magistrate
"has engaged in conduct prejudicial to the effective and expeditious administration
of the business of the courts" or "is unable to discharge aU the duties of office by
reason of mental or physical disability." A special committee of circuit and district
judges investigates, with power of subpoena, and affords the judge or magistrate a
full opportunity to be heard; then it reports to the judicial coundl of the circuit.
The lauer, in turn (after conducting any additional investigation it finds necessary)
may choose among several alternatives, including: (1) requesting, after certifying a
judge'S disability, that the President appoint an additional judge (a previously
existing remedy under 28 U.S.C. 372(b)); (2) Tequesting the judge to voluntaril)"
retire; (3) ordering that for a specified period, no further cases be assigned to the
judge; (4) issuing a censure or reprimand, either private or public; (5) following such
other action as is deemed appropriate - but in no circumstances is a judge who was
appointed to hold office during good behayior to be "remo\ed" from office.
The judicial council is also authorized to refer the complaint to the Judicial
Conference of the United Slales. It must so refer if the council determines that Ihe
conduct might be grounds for impeach men I under the Constirution or "in the in
terest of justice is not amenable to resolution by the judicial council." The Judicial
Conference (or a standing committee thereof appointed by the Chief Justice) can
further investigate, with subpoena powers, and can choose among the above altern~
tives open to the council, or if it determines that impeachment is appropriate, shall
transmit the proceedings and detennination to the House of Representatives. The
Court of Claims, Court of Customs and Patent Appea]s, and Customs Court (now
the Court of Internationa] Trade) aTe required to establish comparable procedures.
191. HUTst, The Functions of Courts in the United States, 1950-]980, ]5 L. 8:
Socy. Rev. 401, 428-435 (19801981).
i92. A study of Michigan auto accidents showed the following: Of 86,100 cases

D. Agencies and Techniques of Law

71

thirds of problems which consumers experienced with products they

bought came to no action for redress; of matters which shaped up to
some definition as disputes, very few came into even the first stages of
handling by courts." (3) In civil cases where the court did enter judgment it often only "processed or approved outcomes to which parties
had been able to agree or which they consented to accept:' There has
been a rise in proportion of uncontested judgments, as well as a decline
in the number of cases brought to fonnal triap.3 (4) In criminal matters, half of the reportable complaints were never reported to police.
Of those that were, only 25 percent were labeled by the police as
crimes, and only 5 percent involved arrest. The great majority of those
arrested never came to trial. The percentage of all criminal court cases
resolved by pleas of guilty without trial ranged up to 90 percent. 19 '
The data for civil and criminal litigation in the federal courts
present a generally comparable picture. 19 '
of auto injuries in 1958. most of them (74.000) were not put in the hands of lawyers.
Le., 24.700 were settled by payment and in 49,300 the dispute was dropped, no payment being made. Of the 12,100 in which lawyers were hired. only 4.000 suits were
filed in court (4,100 had been settled by payment. and in 4,000 the dispute was
dropped, no payment being made). Of the 4.000 lawsuits. only 1.400 went to the
pretrial stage (400 having been dropped and 2.200 having been settled by payment).
Thereafter, only 500 went (0 trial (100 having been dropped and 800 having been
seuled by payment); and of these, 140 were terminated without payment, and 360
by settlement payment or pursuant to court judgment. There were only 80 appeals
from judgments for or against liabiHty. Conard, The Quantitative Analysis of
Justice. 20 J. Legal Educ. I. 35 (1967); Conard. Morgan. Prall, Voltz I< Bombaugh.
Automobile Accident Costs and Payments 154J55 (J964).
J93. As to subject maner, there was a rise in the proportion of tort filings
(largely aulo accident cases, usually settled before trial) and family law filings (largely
uncontested dh'orce); and a decline in contract and property cases.
The authors of a study of courts in two California counties, which reveals the
same trends already described, see "a general movement from dispute resolution to
routine administration over the past century." The courts "are almost totany unused
by ordinary individuals to resoh'e personal problems. The overwhelming majority of
business disputes also avoid the courts. Citizen and businessmen alike either seek out
some ocher agency, or make use of resources within the family, group. or tr.lde
association -or, as is frequently the case, handle the matter entirely on their own"
(e.g.. may resort to arbitration, or discontinue patronizing the other party. or simply
"lumping it;' i.e., doing nothing in response to the grievance). Friedman & Percival,
A Tale of Two CoUTts: Litigation in Alameda and San Benito Counties. 10 Law &
SoC)". Rev. 26i, 301 (19;6). For a critique of this study, see Lempert, More Tales of
Two Courts: Exploring Changes In The "Dispute Settlement Function" of Trial
Couns, 13 Law I< Soc)'. Re\". 91 (1978).
191. The attrition al each stage of the criminal proceeding is detailed in Chap. 2
herein under BlOc.
195. According to Statistical Abstract of Ihe United States (1979), for the year
ended June 30. 1978, of the 138.nO federal civil cases commenced, only 7.4%
reached trial. Of the criminal cases commenced in the same year, 80 or 90% pleaded
guilty (see at 192. 193). The 1980 Report of the Director, Administrative Office of
U.S. Courts reveals (at 97) that of the 36,560 criminal defendants whose cases were
disposed of during the year ending June 30. 1980, 18% had their ca.ses dismissed;
and of the 78.2'70 who were conYicled, more than 80% had pleaded guiily.

72

I.

Some General Observations on Law and the Legal System

Moreover, the data show a limited role for appellate courts as

well; and the cases that do go to an appellate court have a much
better chance of success when the review granted has been within the
court's discretion rather than as a matter of right. l ' B

(4)

Access to Modes of Dispute Settlement

Concern over insufficient "access' to the courts has flowed from

two major sources. One is certain restrictive Supreme Court decisions
on "standing" to sue (though on the whole the Court seems to have
liberalized its standing requirement in recent years). This is a subject
that is analyzed at length in Chapter 2."7 The other is the high costs
of litigation, particularly the high legal fees l98 and the inevitable
court delay we have been discussing.
Inflationary pressures on legal fees are somewhat countered by
certain downward pressures on costs. There is now more price competi
tion within the profession - as a result of Supreme Court decisions
banning concerted feefixing and permitting certain advertising by
lawyers, and the existence of lowfee legal c1inics ' - as well as in
creased competition from outside the profession. 2 And there are
efforts, still struggling, at reducing costs through a swifter, more effi
cient litigation process. 2 '
For the poor, provision of free legal services has been greatly
augmented in civil cases by federal funding (presently threatened, how
ever, by the Reagan administration) of the National Legal Services

196. In state courts, appell:ite court judgments were "probably always much
less than one percent of the total cases disposed of in all reporting trial COUTIS"
(the lauer includes uncontested judgments as we]]. more precise figures on a. comprehensh"e scale being unavailable). In federal courts in recent years. Crom cidl
"contested judgments" of trial courts there has been a 20 to 24% rate oC appeal: in
criminal cases the rale has been higher, perhaps largely because of the free legal
sen'ices provided for indigents. The appeal made a difference in only a minorit)'
of the cases. In those stale court appeals that could be had as or right. the re\'ersal
rate in the last few decades has been about 37% (and 50% for appeals heard at rhe
appellare court's discretion). Appeals to federal courts of appeals in the same period
have been about half as successful as in stale appeals taken as of right. And "gi\'en
the broad discretionary control of the U.S. Supreme Court o\'er its review docket.
and the peculiarly difficuIr issues usually brought 10 it. nol surprisingly ils rale of
re\'ersal consislentIy ran far higher. . , . Thus in 1956 the Supreme COllf( rnersed
in 61.1 percent of the cases it decided. in 1964 in 69.7 percent. and in 1974 in 59.S
percenL" Hurst, supra n.l91 at 4~442S. See al!'o Chap. 4 herein at n.25.
197. See the discussion in Chap. 2 under B6.
198. See Poslscript herein at n.lO.
199. [d. at nn. 1113.2223.
200. [d. at nn. 1416.
201. [d. at nn. 1820.

D. Agencies and Techniques of Law

73

Corporation. And' free legal services are offered in criminal cases

(except for certain minor ones) from the governmental unit affected?2
Other than the poor, no one receives free legal services, except as they
may be benefited by the legal activity of reformist organizations and
"public interest law firms."2.3 A broadened access to legal services is
available, though, through the growth of plans charging more manageable fees, such as the monthly pre-payment "group legal service"
plans or the reduced fee "legal dinics."2" Litigation cost is also significantly affected by the opportunity, under new federal legislation,
for judicial awards of attorney fees and expenses to prevailing parties
in certain federal COurt suits and administrative proceedings. 25
Non-court litigation of disputes - as by arbitration or by mediation and conciliation, applicable to poor and non-poor alike - is much
cheaper but has not reached the bulk of the people yet, in spite of
recent expansion; and it is generally limited to lesser disputes,"" except for much of the commercial and labor arbitration.
Finally, a word On the scope of a constitutional right of access to
courts is needed here. The Supreme Court thought such a constitutional
right applied to a divorce action, viewed as the exercise of a constitutional right of freedom of choice in marital decisions - i.e., the Court
invalidated a state's refusal to permit a divorce action by an indigent
unable to pay certain court fees?7 But the Court refused to extend
the principle to $50 voluntary bankruptcy filing fees,". Or to a $25
filing fee applicable to court appeals from state welfare agency decisions (made after administrative hearing) reducing oldage assistance
and welfare payments.'. Thus, there is no constitutional right of free
access to a court in all types of cases, any more than there is a constitutional right to free counsel in all types of cases. In criminal cases, as
discussed in Appendix 2, the indigent defendant has such a right of
free counsel, with some exceptions. The Court has most often spoken
of a constitutional "right of access" in certain cases involving prison.
ers - e.g., where prison officials have failed to afford law book facilities
or other assistance to a prisoner seeking legal redress, or a court has
202.
203.
204.
205.

ld. at nn. 2627.

ld. at nn. 28-30.
ld. at nn. 2123.
ld. at nn. 31-32.
206. ld. at nn. 16-17; Marcus, supra n.159 at 134.135.
207. Boddie v. Connecticut, 401 U.S. 371 (1971). On the related issue of an
indigent's access to free services needed (or his court case, the Court has held \'iolalive of due process a state's application of its paternity statute (which charged the
cost of blood-grouping tests in a paternity suit to the requesting party) so as to
deny free tests to the indigent putative father. Little v. Streater, 68 L. Ed. 2d 62i
(1981).
208. U.S. v. Kras, 409 U.S. 434 (1973).
209. Ortwein v. Schwab, 410 U.S. 656 (1973).

74

I.

Some General Observations on Law and the Legal System

failed to afford to an indigent prisoner desiring to appeal, a free copy

of the trial transcript required for the appeaJ."o
Apart from the question of indigents' free access to a court, there
is a broader issue: Under what circumstances maya legislature with
hold a court remedy from non.indigents and leave the adjudication
solely to an administrative agency hearing (permitting court review
only of the procedural fairness of the agency hearing). Surprisingly,
this question has thus far received fuzzy and incomplete answers from
the Supreme Court.l l
(5)

The CoUrts' New Administrative Involvement in

Remedying Public Institutions' Constitutional
Violations

A striking development of the last couple of decades in the federal

courts is the spectacle of federal judges as ultimate administrators in
some states, for extended periods, of certain institutions like school
systems, electoral district reapportionment systems, mental hospitals.
and prisons. This has happened because the court found it necessary,
as a means of remedying a violation of law (usually of the Constitu
tion)2l' by the institution, to decree specific operational requirements
and maintain longterm institutional administration or supervision"3
to insure compliance. In this type of case, the court usually cannot act
on its own, and finds it necessary to appoint agents.'"
In the burgeoning literature on this phenomenon,"5 one fre
210. See Anno!., 52 L. Ed. 2d 779 (1978). On this paragraph, see also Nowak
et aI., Constitutional Law 512514 (1978).
211. Davis, Administrative Law Treatise, 28.l8, 28.19 (1st ed. 1958 and Supp.)
(the reJe\"ant volume of the second edition has not yet appeared); Gellhorn. Byse &
Strauss. Administrath:e Law, Cases and Comments 942947 (7th ed. 1979); Davis,
Administrative Law in the Seventies, 28.09 (1976) I< 1980 Supp.; Jaffe, Judicial
Control of Administrative Action 376394 (1965).
212. Less frequently the violation is of statutes, like those on employment discrimination or housing (and here the nature and duration of court intrusion may
be less extreme). See Special Project, The Remedial Process in Institutional Reform
Litigation, 78 Colum. L. Re,. 784, 788 at nn. 46 (1978).
213. On problems concerning duration and termination of court invoh'cment,
see id. at 842844.
214. They h:!.ve been variously labeled (e.g., monitors, masters, mediators,
administrators, ombudsmen, commiuees, receivers) and have performed v3rying
functions. They may gather information and make recommendations as to formula
tion of the decree, or as to its proper implementation; or they may mediate disputes
between plaintiff and defendant over interpretation of the decree and the pace of
compliance, or may actively supplement the institution's management as administrators; or in the unusual case, they may even displace lOp management (as "rcceiver").ld. at 823837.
2J5. Eisenberg &: Yeazel1, The Ordinary and the Extraordinary in Institutional
Litigation, 93 Harv. L_ Rev. 465 (1980): Reynolds, The Mechanics of Institutional
Reform Litigation, 8 Fordham Urb. L.J. 695 (1980); Note, 89 Yale L.J. 513 (1980);

D. Agencies and Techniques of Law

75

quently encounters criticism to the effect that the functions here

engaged in by the courts are executive or administrative rather than
"judicial," and as a matter of separation-of-powers theory as well as
democratic political theory should be avoided by courts; that in the
cases involving state public institutions, state autonomy is being invaded; that courts lack the necessary expertise; that they act on a
narrow record and lack the full investigative capacity of a legislative
committee; that by not acting in terms of the "big picture" of a state's
social and financial problems, they are oblivious to the possible adverse
impact of a particular required funding increase - for instance, upon
the funding in other areas that are equally or more in need; that the
reforms tend to be the minimum necessary to remedy a violation of
law, rather than the optimal ones that a reformist legislature and administrative agency might strive for; and that there are practical
difficulties in the court's using compliance sanctions, primarily the
contempt power.
On the other side, commentators acknowledge the shortcomings of
judges in planning and administering social reforms, yet stress the
judges' duty, upon the finding of law violation, to use their equitable
powers to issue remedial decrees and to see that their decrees are
effective. This judicial function conferred by the Constitution super
sedes, it is thought, any prohibition against a judge's exercise of admin
istrative functions - a prohibition to which the Supreme Court has
lately given little recognition anyway." Arguments are also offered to
show that recent Supreme Court concern for preservation of state
autonomy is inapplicable;2l7 and that precedents are not lacking for
judicial ordering of allocation or increase of state funding. 2l In addition, traditional judicial practice (in such fields as probate, trusts, and
bankruptcy) is pointed to as having frequently involved administration
of continuing enterprises, requirements of periodic accountings to a
Note, 52 U. Colo. L. Rev. 105 (1980); Fiss. The Supreme Court 1978 Term, Foreword,
The Forms of justice, 93 Harv. L. Rev. 1 (1979); Brakel, Special Masters in Institutional Litigation, 1979 Am. B. Foundation Research J. 543; Sarat &: Cavanagh,
Thinking About Courts: Traditional Expectations and Contemporary Challenges.
at 6679 (1979) (U. 01 Wis. Disputes Processing Research, Working Paper 19795);
Mishkin, Federal Courts As State Reformers, 35 Wash. &, Lee L. Rev. 949 (1978);
Nagel. Separation of Powc:rs and the Scope of Federal Equitable Remedies. 30 SIan.
L Rev. 661 (1978); Friendly, The Courts and Social Policy, 33 U. Miami L. Rev. 21,
4042 (1978); Horowitz, The Courts and Social Policy (1977); Note, 91 Han'. L. Rev.
428 (1977); Chayes, The Role of the Judge in Public Law Litigation, 89 HaTV. L.
Rev. 1281 (1976).
216. On this prohibition, see Balor, Mishkin. Shapiro & Wechsler, The Federal
CoUTts and the Federal System 237238 (2d. ed. 1973). But see Gilligan ,'. Morgan,
413 U.S. 18 (1973), which is discussed along with the general separalion.ofpowers
theory in EisenbeTg &, Yeazell, supra n.216 at 495501.
217. Eisenberg & Yeazell, supra al501506.
218. ld. at 506510.

76

1. Some General Observations on Law and the Legal System

court, and reorganization of large indusuial and railroad corporations."9 Finally, the pragmatic point is made"that judicial relief may
be a catalyst; it may, as, "in the civil rights fi\!ld", help to "mobilize
political action whose legislative consequeni:~s far transcended anything that judges were equipped to compel."220
The controversy is sure to continue. In Judge Friendly's words,
"the risk of confrontation between a court, generally a federal court,
and a financially hard-pressed city or state is fearsome, although perhaps inescapable." 201

2.

The Legislatures

An initial difference to observe between the powers of Congress and

those of state legislatures is that Congress can exercise only the powers
enumerated in the Constitution, occurring almost wholly in Article
1,'2' whereas state legislatures are not confined to a specified list of
powers. Under the Tenth Amendment, all powers that the Constitution does not assign to the federal government, and does not prohibi t
to the states, are reserved to the states. "For the purposes of federal law,
state governments or their subsidiaries are not creatures of limited
powers: they are recognized as having a general 'police power' - the
inherent power to protect the health, safety, welfare or morals of
persons within their jurisdiction."".
In their structure and mechanics of operation, Congress and the
state legislatures manifest both similarities and differences. For instance, the states typically have a two-chamber legislature; and like
Congress, one chamber has a shorter term, more numerous members,
and a narrower geographical constituency than the other. But congressional sessions are almost continuous whereas state sessions are
either every other year or, as the great majority have now come to be,
219. ld. at 481-485. Courts exercised these powers before any statutes specifical1y authorized them. ld. at 486491.
220. SaTaL &: Cavanagh. supra n.215 at 77. For a similar point ill the menla]
hospital field. see Note. 91 Harv. L. Rev. 428. 463 & n.l78.
221. Friendly. supTa n.215 at 40.
222. There are 18 enumerations in Article I, 8. Perhaps the ~wel's that ha\'c
had the most Significant legal and social ramifications domestically have been the
powers 10 regulate "commerce"; to Lax and spend for the genera] .....cHale; and to
"make all Laws which shall be necessary and proper for carrying inlo Execulion
the foregoing Powers. and all other Powers vested by this Constitution in the
Government of the United States, or in any Department or Officer thereof" (known
as the "necessary and propcr clausc"). There are sources of congressional power
outside of Article I. too. such as the important power given by 5 of the Fourteenth
Amendment to enforce the Amendment by appropriate legislation. -For other sources
see Nowak. Rotunda &: Young. Constitutional Law 122126 (1978).
223. 1d. at 112.

D. Agencies and Tedmiques of Law

77

annually, with unfortunately rigid limits on length of session.'" Also,

in the referral, screening, shaping, and passage of bills, the standing
committees may play different roles on the state and federal level.'"
Physical and technical facilities and perquisites of office have long
been poorer on the state level. I refer not only to such matters as
salaries, office, and staff assistance but to the fact that the states have
lagged behind in supplying legislators with upt<KI.ate information on
the text, amendments, and calendar status of bills; have far less fre
quently held committee hearings; and done little or no printing of
floor discussion, committee hearings, or committee reports226 - among
other deficiencies criticized by the 1971 Citizens' Conference on State
Legislatures."7 But the last decade or so has, in some ways, seen some
substantial improvements."'.
Can we also say that the substantive performance of state legisla.
tive functions has improved? The answer, on the whole, seems to be
224. This has an adverse effect on the legislature'S ability to cope in a deliberative way with the mounting volume of business. Any substantial research and study
has [0 be done largely between sessions. Commissions or special committees often
underlake such work rather than (as professional opinion seems to prefer) the
standing commitrees - though the number of states using standing committees for
this purpose has been increasing. Rosenthal, Legislative Performance In the States
32-34 (1974)_

225. In the stales, in contrast to Congress, not every bill is first referred to a
standing committee. When a congressional committee does receive a biB, the committee can kill it by simply not reporting it out. Most federal bills die in that
way. though in a rare case Congress forces a bilI out of committee. In some states.
however, the committee must report out each bill, favorably or unfavorably. ld. at
2021. State committees often report the bill in modified form, but not as often as
in Congress. ld. at 25. On the federal as opposed to the staLe level, all reported bills
are scheduled for Boor consideration. ld. at 2829. While few bills reported by
congressional committees lose on the Hoor (though they are often amended). many
state bills do not enjoy such success; and the rules in a particular state may discourage amendments. Id. at 30-31.
226. Wahlke. Organization and Procedure, in Heard, ed., State Legislatures in
American Politics 131132, 133-137 (1966). FuUer reporting would not only tend to
make legislators act more responsibly and intelligently but would help courts in
interpreting statUles. You will find, in reading Chapter 3, that a statute's "legislative
history" (e.g., the various drafts of the bil1. the committee hearings. the committee
reports, what was said on the Hoor) when available often plays a significant role
in its interpretation. Accordingly, the role of legislative history is much more important in interpreting federal statutes, since Congressional reporting is excellent.
2Z7. Citizens' Conference on State Legislatures, The Sometime Governments
(1971).

228. "Today legislatures are more likely to meet annually than biennially.
They spend more time in session than before. Professional staff has increased.
Research agencies nearly everywhere are larger, many of the standing committees
have assistance. and leaders in more than haJf {he states have full-lime staff support.
Facilities are better. Salaries are higher. Procedures have become more efficient and
more public. Electronic data processing, in one form or another, is widespread.
Legislative office is more attractive and larger numbers of able individuals are
willing [0 make personal sacrifices in order to serve. Probably more than other
American public institutions, state legislatures have recently undergone, significant
change." Rosenthal. supra n.224 at 2-3.

78

1. Some General Observations on Law and the Legal System

affirmative, whether we consider the function of (I) "service to constitu.

ents,"229 (2) "policy and program formulation,"23' or (3) "policy and
program control" (i.e., evaluating the effects of state policies and pro
grams, and "oversight" of administration),,31
As for these functions on the federal level, probably some improve.
ment has occurred in all three. Policy and program formulation has
seen the least enhancement because the dominant policy making role
of the President's OMB (Office of Management and Budget) has been
only partially offset by.Congress's reassertion of some budget controls
in 1974,,32 These matters, as well as salient aspects of the third func
tion, will be discussed later under the headings of "Legislature and
229. This and the two other quoted categories are those DC Rosenthal, id. at
11-12. In terms of the first category. "(oll-free telephone 'hot lines' now enable
the ruled to contact their rulers directly; 'sunshine laws' obligate legislators to do
their work in public, in full view of interested persons and the mass media: ethics
rodes, with financial disclosure requirements, mak.e it more difficult for legislators
so inclined to put private interests ahead of the rommonweal." Rieselbach. Legislative Reform 12 (1978) .
. 230. Independence in this function is hampered by the role of the governor
and of political parties. While some reformers have urged a resurgence of legislative
supremacy in policy making, and olhers on the opposite end have urged that legis.
latures should "accept subordination Lo the executive and his/her po1itical party,"
current reforms seem to have been more moderate. They have "re\'o]ved around
efi'orlS to revive legislatures' status as coequal makers of public policy, as ins!itutions
able, . , to 'counterbalance' political executives." 1d. at 2. See also Rosenthal, supra
0.224 at 191.
231. "There are now'40 states where the audit function is part of the legislative
branch. Legislative audit units which were traditionally financial in scope have
been expanded to provide a broad program evaluation capability . . . . The eyaluation
function under sunset laws [these laws require, at fixed periods of years, legislative
committee evaluations of regulatory laws and programs thereunder, and recom
mendations as to whether the laws should be allowed to expire] has been vested in
audit or evaluation commiltees in many states. . . . " Council of Slate Government,
Book of the States 198081, at 80 (1980); Rosenthal. supra 0.221 at 6683. Sunset
legislation had been passed in 33 states by 1980. Council. supra at 81. CommiLlees
for the review of administrative rules had spread to 38 stales by 1980. [d. at 80.
In addition, the "state budget process remaim one of the most effecLh'e means
of legislative program oversight and control. In general, legislatures ended the
19705 with a strengthened budget process." A recent movement to sharc budget
information and participation among all legislators rather than just budgf'l anll
appropriation committees has been furthered by deyelopment in some states of
"computerized legislative fiscal information systems." Also popular in recent years
is the requirement of economic impact statements on certain kinds of bills. use of
"fiscal notes" on biBs, and zero base budgeting techniques. [d. at 83. Final1y, as to
federal funds: "Over threefourths of the legislatures now have some pro\'ision fOI'
review of federal funds received by state agencies. Legislatures have identified the
effect of federal monies on stale planning and priorities as a major problem and
become concerned with ho\'. such funds are received and spent by stale agencies
and integrated with state funds," as wen as becoming concerned with legal issues
like "separation of powers, federalism, the legislati\'c power to appropriate monies,
arid rhe authority of a legislativt' commillee to make decisions on behalf of the
legislature during interim periods." Id. at 8283.
232. See text below between nn. 21J243 & 313315. Concerning the function of
"service to constituents," the improvement described for the slate level in n.229

D.

Agencies and Techniques of Law

79

Executive" and "Legislature and Administrative Agencies." One may

note, meanwhile, that the deficiency in policy and program formula
tion is not the only factor undermining the stereotype of Congress as
the effective source of national legislative power. Students of Congress
have often noted that the organization of this large, unwieldy body
involves such a dispersion of power among its committees and sub
committees as to sorely weaken its national leadership role in planning
and promoting legislative policies. 233 Another point made is that, com
pared to members of the executive bureaucracy, Congressmen are more
"oriented towards local needs and smalltown ways of thought. The
leaders of the administration and of the great private national institu
tions are more likely to think in national terms"'" - a state of affairs
perhaps less prevalent today than previously.
An alternative analysis of congressional function is in terms of
(I) "declaring standards and rules of behavior;'23' (2) "resource allo
cation;"6 and (3) "investigation:'" The two analyses can profitably
be combined.

supra applies on the federal level as well. There is more openness aboUl campaign
funding under [he Federal Election Campaign Act of 1971. as amended, which also
limits honoraria for appearances, speeches, and articles (see .2 V.S.c. 431.455):
there was, as a result of the 1977 Ethics Resolutions of both Houses. disclosure not
only of member finances but also of the receipt of gifts of $100 or more, and a limit
on outside earnings. Under the Ethics in Government Act of 1978, amended in 1979
(92 Stat. 1824; 93 Stat. 37) members of Congress are included. along with other
Officials including the President, Supreme Court Justices, and presidential nominees
and candidates for federal office, in the requirement of annual public financial disclosure reports (see 2 U.S.c. 70J 709; and analysis of the 1981 financial disclosures
made by members of Congress. in 39 Cong. Q. 1677 (1981). The occasions when votes
in Congress must be recorded have been increased; most committee meetings have
been opened to the public, with members' votes recorded and made public. Proposals for additional openness include leJe\-ising Congress and closing loopholes
in the Federal Regulation of Lobbying ACL See Bullock. Congress in the Sunshine,
in Rieselbach, supra n.229 at 209221. Bullock notes (at 216-220) that increased
openness may have had some unintended consequences. such as making members
less willing to compromise their positions; causing more deJ3y in decisionmaking
in committees and on the Ooor; introducing a conservative bias. both because
delay supports the status quo, and because heeding constituent preferences more
c]ose]y may mean more conservative voting on some issues like civil liberties or
abortion funding; and turning lobbyists' interests towards influencing staff members
instead of Congress members.
233. Dodd &: Schou, Congress and the Administrath'e State 124-129, 326-328
(1979); Huntington, Congressional Responses to the Twentieth Century. in Truman,
ed., The Congress and America's Future 18-22 (1965).
234. Huntington, supra at 15.
235. Hurst, Law and Social Order in the United States 97)05 (19i7). For the
states. see id. at 8297.
236. Id. al 112-122. This includes taxing and spending for the deb IS, defense,
and general welfare of the United States; borro\\'ing money; and contrOlling the
coin and currency. For the stales. see id. at 105-112.
237. Id. at 122132. 153154_ See also Note, 70 Han'. L. Re\". 6il (195i); Auerbach et aI., supra n.5 at 606623 (1961).

80

3.

I.

Some General Observations on Law and the Legal System

The Chief Executive

I confine myself here to the President and the sources and nature of
his power. The primary definition of his position is Article II of the
Constitution. Its listing of powers is less extensive than Article I's
enumeration of Congress's powers: "The executive power" is vested
in him, and he is to "take care that the laws be faithfully executed."
A few more provisions add some specificity: He has military power
as "Commanderinchief'; he has veto power over congressional bills;""
"he may require the opinion, in writing, of the principal officer in each
of the executive departments, upon any subject relating to the duties
of their respective offices"; he "shall have power to grant reprieves and
pardons for offenses against the United States, except in cases of im
peachment"; he has the power to make treaties with the concurrence
of twothirds of the Senators present; and he can, with the concurrence
of a Senate majoritY...make ce.rtai'L :tpDDintmen,rs." He also is obliged
to "from time to time give to the Congress information of the state of
the Union, and recommend to their consideration such measures as
he shall judge necessary and expedient."24<l
The other source of presidential power is statutory. When Con
gress has authorized a President to do certain things, "his authority is
at its maximum," Justice Jackson once said, because "it includes all
that he possesses in his own right plus all that Congress can delegate."
When he acts "in absence of either a congressional grant or denial of
authority, he can only rely upon his own independent powers." By
so relying he may undertake a course of action that, according to a
238. Under Article I. VII, d. 2, this veto can be overridden by two-thirds \'ote
of each house; if a bill after passage by both houses is presented to [he President
and not returned by him "within len days (Sundays excepted) ... the same shall
be a Jaw in like manner as if he had signed it, unless [this being the "pocket veto"
provisionJ the Congress by their adjournment pre\'em its return, in which case it
shall nOI be a Jaw." That is. where Congress adjourns within the ten-day period,
the President may eft'ecth'e1'y sign the bill within that period. but if he does not it
Wi~1
no
come law. See Edwards v. U.S., 286 U.S. 482 (1932).
~hese are "ambassadors. other public ministers and consuls. judges of the
Sup
e Court. and all other officers of the United States whose appointmelils are
not herein otherwise provided for, and which shall be established by law; but the
Congress may by Jaw vest the appointment of such inferior officers. as they think
proper, in the President alone, in the courts of law, or in the heads of departments."
And he has "power to fil) up a1l vacancies that may happen during the recess of
the Senate. by granting commissions which shal) expire at the end of the nexl
session."
240. In addition. "he may on extraordinary occasions, convene both Houses. or
either of them, and in case of disagreement bel\\'een them with respect to the time
of adjournment. he may adjourn them to such time as he sha1l think proper: he
shan receive ambassadors and other public ministers"; and "shall commission all
the officers of the United Slales." He is to be "removed from office on impeJchment
for and conviction of treason, bribery, or other high crimes and misdemeanors."

D. Agencies and Techniques of Law

81

subsequent court decision, is not within the constitutional concept of

"executive" power. Moreover, as Jackson further remarked, his deci
sions may fall within '"a zone of twilight in which he and Congress may
have concurrent authority, or in which its distribution is uncertain'";
or they may be '"incompatible with the expressed or implied will of
Congress:'24! This conflict between executive and legislative power
will be developed more fully in '"Legislature and Executive" below.
Of interest here is how Congress itself has expanded the scope of
executive power - a bolstering of the Executive Office begun in
Franklin D. Roosevelt"s day. The Executive Office has now become a
"powerful organization [consisting] of a group of personal advisors,
staff offices, and advisory councils (among them the Office of Manage
ment and Budget, the National Security Council, the Council of
Economic Advisors) designed to supply Presidents not only with
intelligence about what is happening in the depths of the administra
tion, but also with public policy options and the organizational tools
to coordinate both the formulation and execution of public policy."'"
The OMB is of particular importance. It "has emerged as the presi.
dential staff agency par excellence. Its duties have grown beyond assist
ing in budgetary formulation to include budget administration, the
clearance of legislative proposals emanating from executive branch
agencies, coordination of broad, government.wide programs, assistance
in the formulation of the president's legislative program, and advice
to the president on whether to veto bills proffered by Congress. It also
conducts executive oversight of program management and administra
tion, reviews executive branch organization, and assists in the career
development and assignment of top level officials." It "has grown so
powerful that Congress recently required that its director, heretofore
appointed solely at the pleasure of the president, henceforth be con
firmed in office by the Senate." .. 3
Congress has enhanced presidential power in other ways, such as
authorizing the President to reorganize executive agencies, subject to
certain congressional checks. Though high.level appointments of offi
cers have to be made with the advice and consent of the Senate, the
Senate has traditionally afforded great discretion to Presidents in this
regard?" And Congress has in a few instances lodged in the President
the final decisionmaking authority to be exercised after the relevant
agencies had completed their proceedings and recommendations (e.g.,
decision on tariff changes; decision on natural gas pipeline route from
241.
U.S. 579,
242.
243.
214.

Jackwn, J., concurring in Youngstown Sheet & Tube Co. v. Sawyer, 343
635637 (1952).
Dodd & Scholl, supTa n.233 at 3 (1979).
ld. at 43-44.
On this and the preceding paragraph. see id. at 34.

82

I. Some General Observations on Law and the Legal System

Alaska across Canada to terminals in the United States, but subject,

in this instance to congressional review; and review of Nuclear Regula
tory Commission decisions against licensing the export of nuclear
material).'
Another important characteristic of the Chief Executive's power
is that it extends beyond the strictly executive domain. His constitutional power to "recommend [to Congress] such measures as he shall
judge necessary and expedient" is closer to legislation than to executive power (his office is responsible for most of the bills introduced
and passed in Congress). So too is his power to approve or veto legislation, while the power to pardon or commute sentences has a judicial
cast; its exercise resembles an adjudication that the facts in a particular
case warrant leniency."6
Further aspects of presidential power are discussed later under
"Chief Executive and Executive-Administrative Agencies" and "Legislature and Executive."

4.

Executive and Administrative Agencies

\Vhile we have in the two previous sections encountered a legislative

role of the executive in the formulation and promotion of legislation,
we normally think of the executive part of the government as "carrying out" or "executing" the law made by the legislature. The jobs
most of us associate with the executive branch, for instance, are posts
that involve carrying out laws: tax officials, inspectors, licensing officers,
policemen, prosecutors, motor vehicle commissioners, Presidents, governors, mayors, and their subordinates.
There are really two main forms of the executive. On one hand
are the departments. bureaus. and divisions (agriculture, labor. public
health, tax, etc.) that report to the Chief Executive. The second grouping contains the "administrative agencies" - such as the Securities and
Exchange Commission, National Labor Relations Board, and Federal
Trade Commission on the federal level; or the public service commission. workmen's compensation commission, and zoning commission on
the state level - that are semi-independent of the Chief Executive, as
we shall see, and are sometimes called "independent agencies" as dis
tinguished from executive departments.
1. Either form of agency can exhibit a mixture of functions. In
245. See Gellhorn et al., supra n.211 at 141142.
246. See also Ledewitz, The Uncertain Power of the President to EXt'cutl' the
Laws, 46 Tenn. L. Rev. 757 (1979); Nowak el aI., supra n.222 at 172li6 &, chap. 7;
Swindler, The Executive Power in State and Federal Constitutions, I H:'lSlings Const.
L.Q.21 (1974); Hurst, supra n.235 at 143153.

D. Agencies and Techniques of Law

83

the first place, in order to execute or administer the law laid down by
the legislature, a department or agency may be authorized by the
legislature to exercise a lawmaking function (i.e., issue rules and regu
lations, with the force of law, that implement the statute) - as, for
instance, when the Treasury Department issues tax regulations, or
the SEC issues rules regarding the sale of securities. The regulations
are issued after notice of a so-called "notice and comment" hearing247
on the proposed regulations. Unlike a court hearing, this hearing is
more like that of a legislative committee, during which written and
often oral comment is received, but there is no crossexamination, and
no detailed findings of fact and conclusions of law are made by the
issuing agency. Statutes for particular federal agencies, however, have
sometimes imposed some or all of the characteristics of a trial-type
hearing upon rulemaking. 2' 8
So too, both forms of agencies may exercise a kind of judicial
function. In the first form of agency, consider the office of a district
attorney: The prosecutor has to make some judgments that migh t be
called "adjudicative," such as whether criminal proceedings should be
brought, or whether the nature of the case, the condition of the office
workload, and other factors justify substituting a lesser charge in reo
turn for a guilty plea to that charge. The police, too, are constantly
making instant adjudications when they determine whether the facts
justify making an arrest. A Veterans Administration or a Social Security office adjudicates claims for pensions, though usually informally.
But it is the second form of agency - the "administrative agency" that we are prone to recognize as more clearly exercising a judicial
function. This seems to be because of the hearings held prior to adjudication of, let us say, whether an FTC cease-anddesist order, or an
NLRB unfair labor practice order, should issue. These hearings in
many respects resemble the hearings in civil court proceedings. Often
called "quasijudicial" agencies, therefore, these administrative agen
cies are distinguished from ordinary executive departments. (But the
dividing line is somewhat blurred: There are some executive depart
ments, too, e.g., the federal Department of Agriculture, Commerce, or
Interior, in which constituent bureaus hold rather formal adjudicative
hearings as well as making more informal adjudications.)2'> The
question of whether there is a constitutional right to a full, or an
almost full, court like hearing before the making of adjudications of
particular individual rights (as distinct from the making of general
247. See 4 of the Administrative Procedure Act, 5 U.S.c. 553.
248. See 1 Davis Administrative Law Treatise, chap. 6, esp. 6.J. 6.9 (211d ed.
1978).
2-19. Sec Vcrkuil. A Study of Informal Adjudication Procedures. 43 U. Chi. L.
Rev. n9, 757-796 (1976).

",

84

I.

Some General Observations on Law and Ibe Legal System

regulations) - e.g., administrative revocation of probation or parole,

discharge of a public employee, termination of welfare benefits, debar
ment of contractors from further dealing with the government, or
revocation of an automobile license - arose frequently in the I 970s.
The result was "a greater expansion of procedural due process in the
last five years [1970-1975) than in the entire period since ratification
of the Constitution.""
2. The typical "administrative agency," then, has the power to
issue rules and regulations and/or to issue individual adjudicative
orders depending on its statutory authority. The rulemaking might be
authorized for such purposes as protecting the quality or safety of
products; informative labeling; labor or price standards; environmental
quality; and honest, fair, or non-monopolistic business behavior. Individual orders might be authorized for such purposes as license issuance,
setting rates, or fixing an injured worker's compensation. Individual
enforcement activity might be authorized, like suspending or revoking
licenses, suspending a government contractor, issuing cease-and-desist
orders, making a negotiated settlement, giving publicity to orders. rccalling products, seizing a product. requiring corrective advertising.
withholding a subsidy, assessing a monetary penalty.'" And enforcement actions in court might be authorized, such as criminal prosecutions, fixed monetary penalties of a civil nature, double or triple
damages. "restitution," or injunctions that either restrain or command.
3. In terms of sheer volume of disputes handled. it is clear not
only that executive agencies (including. e.g . Internal Revenue Service
in the Treasury Department, the Veterans' Administration. Social
Security Administration in the Department of Health and Human
Services. Occupational Safety and Health Administration in the Labor
Department, various agencies within the Departments of Agriculture.
Interior. and Transportation) carry a far greater burden than the
administrative agencies,"'" but that agencies of either type carry a

250. Friendly. Some Kind of Hearing. 123 U. Pa. L. Rev. 1267. 1!!73 (1975). See
2 Davis, Administrative Law Treatise. chaps. 1013 (2d ed. 1979).
251. On administrative sanctions, see Hazen. Administrative Enforcement: An
Evaluation of the SEC's Use of Injunctions and Other Enforcement Mcthods, 31
Hastings L..J. 427 (1979); Diver, The Assessment and Mitigation of Civil Money
Penalties By Federal Administrative Agencies. 79 Colum. L. Rev. 1435 (1979); Note,
73 Nw. V.L. Rev, 957 (1978); Lawrence'. Judicial Re\'iew of Variable Ci .... il Money
Penahies. 46 U. Cin. L. Rev. 373 (1977); Thomforde, Negotiating Administrative
Seulements In SEC Broker-Dealer Disciplinary Proceedings. 52 N.Y.U.L. Rev. 237
(1977): Thomforde, Controlling Administrati ....e Sanctions. 74 Mich. L. Re\'. 709
(1976); No.e. II Wake ForeS! L. Rev. 83 (1975); E. Gellhorn. Adverse Publici'y By
Administrative Agencies, 86 Harv. L. Rev. 1380 (19;3); W. Gellhorn. Aurninislralh'e
Prescription and Imposition of Penalties. 1970 Wash. U.L.Q. 265: McKay, Sanctions
In MOLion: The Administrative Process. 49 Iowa L. Rev. 411 (1961).
252. Sec ] Davis, supra n.250 al 1.3.

D. Agencies and Techniques of Law

85

heavier burden than do the courts. In a given recent year, the federal
district courts will have handled several thousand cases, but the federal
agencies will have handled ten times as many, counting only those
involving an oral hearing and verbatim transcript. If federal informal
adjudications were counted, the annual number would run into the
hundreds of millions and perhaps billions. And remember that the
average state may have more than a hundred agencies with powers to
adjudicate or issue rules (or both) with the force of law."">
4. It is not hard to see the advantages of lawmaking and enforce
ment by agencies. The legislature has neither the time nor the expertise
to handle the detailed requirements of regulatory schemes for a myriad
of ever-changing industrial and nonindustrial problem areas, and to
provide the continuous, dayto-day supervision that may be needed.
Could the legislature meet the lawmaking aspect of the problem
by regulating in general rather than detailed terms? Of course, it
sometimes does this. But it is an unsatisfactory technique: (a) it is
unsatisfactory to the industry or other subject of the regulation because the vagueness gives unsatisfactory notice, and indeed would
sometimes be unconstitutional on this account; (b) it, at any rate,
tends to maximize the amount of litigation over the meaning of the
standard.
As to the enforcement aspect of the problem, could the legislature
leave it to the district attorney, or to aggrieved individuals, rather than
administrative agencies, to bring cOurt enforcement suits? Again, of
course, it sometimes does this. But it foregoes certain advantages of
administrative agency adjudications and agency enforcement suits in
court. The advantages here would be: quantitatively greater enforcement as a result of continuous supervision; qualitatively better
enforcement because of the development of a uniform enforcement
policy and because of specialized knowledge on the part of the plaintiff
enforcers.
But while this expertise of the agencies is important, you should
beware of attempts to exaggerate its extent and its value. Top members
of administrative commissions and boards are not always experts in
the field involved; and though there are experts on the staff, they are
not always expert in the precise area of the agency's field (e.g., a power
commission concerned with water power problems may have to hire
an engineer whose expertise in water problems is acquired after rather
than before the hiring). Moreover. agency experts, like other personnel
of bureaucratic organizations. tend to become congealed and conservative in their positions. Federal Judge Wyzanski once put it this way:
253. In supporl of this paragraph, sec Davis. Adminislralh"e Law Text 4 (3d ed.
1972).

86

1.

Some General Observations on Law and the Lega1 System

"One of the dangers of extraordinary experience is that those who

have it may fall into the grooves created by their own expertness.
They refuse to believe that hurdles which they have learned from
experience are insunnountable can in fact be overcome by fresh. in
dependent minds."'" In addition. the extent of disagreement among
the experts is still substantial in many fields. Finally. remember that
agency expertise does not necessarily go hand in hand with wise
policymaking;' that "expertness is not wisdom and that the relative
ordering of values in a society - the ultimate problem of choosing
between alternative courses of action - is something we do after the
expert has completed his task of collecting data. describing. and. to a
limited extent. predicting."'" (Emphasis added.)
Some of the interrelations of agencies with legislatures. the Chief
Executive. and courts will be treated under other headings below.

5.

The Public

Only two aspects of the influence of the public on law will be touched
on here: (a) the role of public opinion, and (b) public participation
in governmental processes.

a. Public Opinion
Consider first a well-known passage from Justice Cardozo about
the role of public opinion or public values in the shaping of a judicial
decision: "When the legislature has spoken. and declared one interest
superior to another. the judge must subordinate his personal or subjective estimate of value to the estimate thus declared . . . . Even
when the legislature has not spoken. he is to regulate his estimate of
values by objective rather than subjective standards. by the thought
and will of the community rather than by his own idiosyncrasies of
conduct and belief."256 What is not so often noted is the subsequent
passage in which Cardozo observes that when the objective and sub
jective standards differ. there is no authoritative declaration or defini
tion of the difference to help the judge. He will "have no standard of
value available except his own"; '"the objective will for him be merged
251. U.S. v. United Shoe Mach. Corp . llO F. Supp. 295. !46 (D. Mass. 1953).
255. Schwartz, Legal Reslriction of Competition in the Regulaled Industries:
An Abdication o Judicial Responsibility. 67 Han:. L. Re\,. 436, 47'2 (1951). See
generally Freedman, Expertise and [he Administrative Process. 28 Ad. L. Rn. 363
(1976).
256. Cardozo. The Growth of the Law 95 (1921).

D. Agencies and Techniques of Law

87

in the subjective." The judge thus "interprets the social conscience

and gives effect to it in law, but in so doing he helps to form and
modify the conscience he interprets. Discovery and creation react upon
each other."2'7
This rather inevitable personal or creative contribution of the
judge even when he purports to be effectuating "the thought and will
of the community" is still stronger in a constitutional as distinguished
from a common law case - though Chief .J ustice Stone coalesced the
two kinds of cases when he said that the "sober second thought of the
community . . . is the firm base on which all law must ultimately
rest."258 Constitutional cases receive my special emphasis since the
very reason the clauses being construed ("due process," "equal protection," "unreasonable searches and seizures," etc.) were put into the
Constitution was to restrain the community majority - acting through
its legislatures or officials - from actions prohibited by those clauses.
It is true, however, that in interpreting what those clauses prohibit,
the court need not and should not ignore whatever light might be
thrown on them by both historical and contemporary community
values. So too in determining the "rationality" of the legislative
judgment on a subject, a court can find some relevance in public
opinion on the subject. Such opinion belongs in the category of
"legislative facts" that are relevant to constitutional decision (Le.,
facts bearing directly upon the policy judgments to be made, as distinct from the facts about wha t the parties did and the happenings
that affected them, known as "adjudicative facts").25'
Though not in definitive fashion, the Supreme Court has in fact
referred to contemporary public opinion from time to time in considering constitutional issues. The 1972 death penalty case is an
example. In this Furman decision, two of the five-man majority that
found a violation of the "cruel and unusual punishment" clause' o
referred to public opinion. Their decisions had to take into account
opinion polls approving the death penalty; and Justice Brennan did
so by claiming the extremely infrequent application of the death
penalty undermined the significance of the polls and showed that "contemporary society views this punishment with substantial doubt."'!
Justice Marshall thought that public opinion on this subject may well
be based on ignorance or misinformation, and that it would change
in the light of accurate knowledge. 2 2 The four dissenters joined in
257. [d. at 95-97.
258. Stone, The Common Law in the United Slates, 50 Han', L. Rev. 4. 25 (1936).
259. See Karst, Legislalive Facts in Constitutional Litigation. 1960 S. Cl. Re\', 75.
260. Furman v. Georgia, 408 U.S. 238 (1972). The de:nh penalty cases aTe discussed earlier in this chapter, at nn. 2529, and in App. 2 at nn. 214, 216-220.
261. FUTman at 300.
262. [d. at 361369.

88

I.

Some General Observations on Law and the Legal System

the skeptical or equivocal feelings of Chief Justice Burger2 s and

Justice Powell 264 about the significance of public opinion. for this
litigation or other constitutional litigation.
In the 1973 abortion decision invalidating the then typical state
prohibition against abortion (on grounds of a privacy right embodied
in the due process clause).".' public opinion was not discussed except
for the glancing treatment in the Rehnquist dissent: "Even today,
when society's views on abortion are changing, the very existence of
the debate is evidence that the 'right' to an abortion is not so uni
versally accepted as the appellants would have us believe."". That the
majority did not cite the opinion polls may be due to the fact that
while society's views were indeed changing (i.e., as scholars have ob
served "the level of support [for abortion] was increasing in the late
1960s and early 1970s") still it was "not evident that a majority (or
even a plurality) supported the pro-choice position by 1973. Even by
early 1974, the margin of preference for that position was small enough
to have resulted only from sampling error in the Gallup surveys."''
Thus both the death penalty and abortion decisions went to the
verge of judicial power in invalidating the legislative judgment of a
multitude of states on matters of great public moment. in spite of the
absence of clear support in public opinion for the invalidation. I do
not suggest. as some have done, that the decisions represent a usurpation of power. For I remind you of the fact that public opinion while
relevant. is not a controlling consideration; and that constitutional
restraints. which are of course to be interpreted by courts, were in263. ld. at 385386: "Without assessing the reliability of such polls. or intimating that any judicial reJiance could ever be placed on them. it need only be
noted that the reported results have shown nothing approximating the universal
condemnation of capital punishment that might lead us to suspect that the legislatures in general have lost touch with current social values."
264. After noting that pubJic opinion had not been shown 10 be against capital
punishment, he said. "[blut howner one rna}' assess the amorphous ebb and flow
of public opinion gener;])]y on this volatile issue. this type of inquiry lies at the
periphery-not the core-of the judicial process in constitutional C3ses. The assess
ment of popular opinion is essential1y a legislative. not a judicial function" (at 443).
265. See supra n.42. See also supra nn. 58 &: 59.
266. Roe v. Wade. 410 U.S. 113.198 (1973).
267. UsIaner &: Weber, Public Suppor! for Pro-Choice Abortion Policies in the
Nation and Statfs: Changes and Stability After the Roe and Doe Decisions. 77
Mich. L. Rev. 1772, 1773 (1979). The authors sa)' thaL support then rose slowl~' to
59'70 in 1976, dropped 10 53'70 in 1977. and rose to 60% in 1979 (al 1775). Support
was much higher when questions were focused on certain specific circumstances
(defect in baby. mother's health threatened. pregnancy resulting from rape). On
the general question of abortion for up to a three- or fourmonth pregnancy. and
on the questions concerning special circumst:mces. there was a rise in suppOTt in
1973 over 197~ (the Supreme Court decision was in January 1973) ranging from 7
to 9% according to Harris and NORC polls (at 17751776). but a suhs1antially
smaller increase according to Gallup polls measuring the change from 1972 to 19i4
(3t 1777).

D.

Agencies and Techniques of Law

89

tended to restrain legislative majorities. And I suggest further that,

as we shall later see,o., when the rights involved are as deeply personal
as those in these two cases, it has been customary for courts to shed
the traditional presumption favoring legislative judgment in con
stitutional interpretation.
Nonetheless, the Court surely feels the need to tread carefully in
its infrequent role as educator, rather than reflector, of opinion. It
risks loss of prestige as well as retaliation. We are familiar with public
hostility (sometimes geographically concentrated) to the Supreme
Court over the Warren Court's personal liberty and equal protection
decisions. o We know that the California public overruled by con
stitutional amendment (Art. I, 27) the California Supreme Court
invalidation of the death penalty.2rO We know that the United States
Su preme Court decisions on abortion, school prayers, and busing to
implement school desegregation have recently provoked drastic con
gressional proposals aimed at circumventing those decisions. In gen
eral, the Court must reckon with what has been called the "profound
antiliberalism . latent throughout our society:'271 These pressures the
Court deals with help to explain why the death penalty and abortion
decisions represent what I describe earlier in this chapter (p. 14) as "the
u.nusual instance of a strong legal change, in an area of controversial
moral attitudes, being made by a court's invalidation of a legislative
judgment even though popular sentiment for the change does not
represent a strong majority."

b.

Public Participation

The other legal aspect of the public that I want to say something
about is the relatively recent phenomenon described as "public par
ticipation." Of course the phenomenon is not wholly new; but by
reviewing developments over the last couple of decades or so, one
sees a rather steady expansion of the public's right to participate in
government processes. In the field of elections, statutes and decisions
268. See Chap. 5 herein under Cl.
269. See Choper. Judicial Review and the National Political Process 165166

(1980).
270. People v. Anderson. 6 Cal. 3d 6~8, 493 P.2d 880 (1972).
2il. "OnT the years a series of carefully structured studies. surveys ami polls.
as well as assorted grab-bag questionnaire arrangements ascertaining the ,'je,,s of
gTOUpS of questionable representatives. all ha\'e probed and examined the attitudcs,
of Americans toward ci\,j} liberlies. Apparently without exception, these studies
record profound antiliberalism latent throughout our society." Choper. supra n.~69
at ]63, quoting from Krislov, The Supreme Courl and Political Freedom (1968) and
citing lli~cussion at 39-53 of the latter. Other sources are cited in Choper"s discus~ion
at 163164.

90

I.

Some General Observations on Law and the Legal System

have worked substantially to overcome barriers to voting and to participation by would-be candidates.' 72 Direct participation in government administration was called for by the Economic Opportunity Act
of 1964 with its "community action" boards and its requirement of
"maximum feasible participation." Analogous provisions were in
other antipoverty, housing, health, and education legislation of the
1960s.273 In addition, the 1972 Federal Advisory Committee Act
authorized and controlled the agency practice of using committees of
unpaid representatives of particular interests in the community as
sounding boards ~or policy development;'" and a trend has developed
in the states for inclusion of public representatives on state licensing
boards.' ro As distinguished from participation in administration,
opportunity to be heard administratively received a big boost in the
1960s and early 1970s, both when the individuals or groups involved
were the specific object of adverse government action,27. and when
the} simply wished to participate in an agency proceeding that might
adversely affect their interest - a participation that Congress was in
some instances willing to subsidize?77 Three recent (though attenuated) forms of participation or opportunity to be heard administratively should also be mentioned: (I) making use of an "ombudsman"
(official receiver of public complaints about the action or inaction of
government officials) - a European technique that has been making
very slow headway in American state and local governments;7. (2)
seizing the opportunity afforded by the "freedom of information" type
of statute to obtain information from government files - a statute
enacted by many states, and by Congress in 1966 (and strengthened in
1974);'79 (3) utilizing the "sunshine" or "open meeting" laws (throwing
open to the public most of the meetings of most public bodies) enacted
in all the states, and by Congress in 1977.2.0
272. Mermin, Participation in Governmental Processes. in Pennock &: Chapman.
eds., Participation in Politics 136-137 (1975).
273. [d. al 137138.
274. See 86 Stat. 770 (1972), 5 U.S.C., App. I; Perritt Ie Wilkinson. Open Ad
visory Committees and the Political Process: The Federal Advisory Commillee Act
Afler Two Years, 63 Geo. L.J. 725 (1975); Markham. The Fede",1 Ad,isory Commit
tee Act. 35 U. Pitt. L. Rev. 557 (1974). Some agenc), statutes have provided speciflcall~'
for representation from the general public as well as from industry. Also the Ad
visory Committee Act provided for open committee meetings with some exceptions
that Congress in the Sunshine An (5 U.S.C. 552b) amended, making them the same
exceptions provided in the latter Act.
275. See N. Y. Times, Feb. 20, 19i7, E, at6.
276. Mermin, supra n.272 at 138140; Friendly, Some Kind or Hearing, 123
U. Pa. L. Rev. 1267 (1975); Mashaw, The Supreme Court's Due Process Calculus
For Administrative Adjudication . .. :' 44 U. Chi. L. Rev. 28 (1976).
2:77. Mermin, supra n.272 at 140143; Gellhorn et at, supra n.211 at 6346i4.
278. Mermin, id" references at 156, n.52.
279. GeIIhorn et al .. supra n.211 at 579624.
280. [d. at 628634.

D. Agencies and Techniques of Law

91

Public participation in government processes might be viewed as

also including the opportunity to be heard in court. The threshold
requirement of "standing" to sue - which is discussed in Chapter 2has generally been loosened in recent years. The significance of this
increasing freedom is heightened by the growth of two techniques for
maximizing the public's access to courts: the "class action," which
makes economically feasible the bringing of lawsuits by consumers,
welfare recipients, etc. who could not afford to bring individual law
suits; and the bringing of suits by "public interest" law centers and
law firms. Specifically concerning the poor, an enlarged participation
in both civil and criminal cases has been made possible by substantial
provision of free legal services and invalidation of at least some fee
barriers to suits and appeals. Also, the Supreme Court has been
recognizing a right to be heard in cOurt at an earlier stage of certain
legal processes than has traditionally been permitted. Courts have
been requiring greater court hearing rights than previously enjoyed
for juveniles, defendants under certain sex deviate laws, defendants
who are to be committed for institutional examination after a finding
of insanity, and persons who are the subject of civil commitment
proceedings.~81

Miscellaneous additional trends of participation might be men

tioned. One proposal now being urged is that a citizen who is a party
in that governmental process known as a lawsuit should participate
more fuIJy by a more complete control of his lawyer. The proposal
envisages a "participatory model" for lawyerclient relations (as dis
tinct from the more "traditional model" in which the lawyer is almost
in complete charge, in spite of the fact that theoretically the 1969
ABA Code of Professional Responsibility seems to favor the participa.
tory model)?2 Public participation in the court process has also been
enlarged by broadened participation in juries - i.e., through court
decisions invalidating systematic exclusions of racial minorities, and
more recently, of women, from jury service in criminal cases. Finally,
some statutes on particular subjects have specifically authorized
citizen enforcement suits against law violators.' R3

6,

Some Interrelations Among the Law's Agencies

In the course of dealing with the major categories of the agencies of

law, I have already hinted at some interrelations among them, as in the
281. On [his paragraph, see Merrnin, supra n.272 at 144-146; this chapler under
D1b(4).

282. Mcrmin. id. at 147-148; Rosenthal. Lawyer and Client: Who's ]n Charge?
(1974). See also Ch,p. 5 herein, text at nn. 6871.
283. Mermin, supra n.272 at 148149.

92

I.

Some General Observations on Law and Ibe Legal System

case of executive pressure on legislatures and legislative supervision

over the agencies. What I want to do here is sketch a broader - though
still not complete - picture of interrelationships. I hope to explain
why it can be said that instead of the theoretical ideal of a "separation"
of judicial, legislative, and executive power we have in fact a sharing
or integration of power - not only a mixture of functions within
each of the three major institutions, but also mutual interactions
among them, of control and countercontrol.

a.

Chief Executive and ExecutiveAdministrative

Agencies

Before considering examples of truly interagency relations, let me

first dispose of what looks, in part at least, like an intraagency relation.
I refer to the relation between the Chief Executive and the executive
and administrative agencies.
I. I referred earlier to the fact that an administrative agency has
more independence from the President than does the executive depart.
ment within the President's Cabinet. This has given rise to two major
criticisms. One is that semi.independence makes more difficult the
effective coordination of policies and programs by the Chief Executive
(who, moreover, has been popularly elected, whereas the agency memo
bers have not). The second criticism is that relative lack of executive
control makes more possible an oftennoted phenomenon: an agency
tendency to lose its initial regulatory zeal, and to identify the public
interest with the interest of the regulated industry.
The second criticism is more vulnerable to rebuttal than the first.
since the regular departments may have as much tendency toward
industry orientation as the administrative agencies. Says a veteran
administrative law scholar: "Anyone who follows the activities of the
Department of Agriculture, for example, comes to feel (though this
too is no doubt an exaggeration) that the Department is a glorified
farmers' lobby." And it is doubtful "that an executive agency will be
much different from an independent agency in periods when public
opinion or statutory policy [or, he might have added, executive policy)
is slack, indeterminate, or lacking in conviction."2s, Notice that the
last sentence includes a reference to indeterminate statutory policya particular point of comment by students of the administrative
agency. There is much room for improvement, it is argued, in the
legislatures formulation of standards: it could, by clearer policy guid.
ance than is afforded by statutory phrases like "the public interest,"
284. Jaffe, Book Review, 65 Yak L.J. 1068, 1071, 1071 (1956).

D. Agencies and Techniques of Law

93

counteract the tendency to industry orientation, and help resolve

uncertainties for the public and courts as well as for the agencies. 2 5
Semi independence has another interesting aspect worth noting:
its impact on the executive power of removal of officers. The Supreme
Court has held that the President could freely remove a subordinate
executive employee (a postmaster) from office without the congressional
consent that Congress had specified as necessary;'.6 but that the
President could not remove a quasi.judicial officer (Federal Trade
Commissioner; War Claims Commissioner) on the ground of disapproval of his policies or wanting a man of his own selection, when
Congress had specified not these but other grounds (inefficiency, neglect
of duty or malfeasance) as a basis for removal?87 or when Congress had
been silent on removal. 2S These cases, however, do not seem to
prevent a President from achieving removal of such a commissioner by
a different path. If he were to file charges of inefficiency and neglect of
duty and, after hearing, remove him, a court"s deference to executive
fact finding in such a situation would probably lead it to affirm, even
if the proof were slight. Moreover, "[e]ven though members of most
of the socalled independent boards and commissions are dismissable
only for cause and sometimes only for very explicitly stated causes
such as malfeasance or neglect of duty, an unelaborated request for
a resignation has rarely been ignored, perhaps because the person
involved preferred not to risk too explicit a statement of why he
should give up his office."2
2. What comes before removal of course is appointment. The
President's appointing power is a potent one, not only in relation to
the high level personnel in the various departments of his Cabinet
but also to the members of the independent agencies. The latter serve
terms of five, six, or seven years, with one member's appointment
expiring each year; and there is a tendency of members not to serve
for a full term. Hence the President has a real chance to influence
285. Id. at 1072-1074; Friendly. The Federal Administrative Agencies: The
Need for a Beaer Definition of Standards (1962).
286. Myers \". U.S., 272 U.S. 52 (1926).
287. Rathbun, Humphrey's Executor v. U.S., 295 U.S. 602 (1935).
288. Wiener \'. U.S., 357 U.S. 349 (1958).
289, Gellhorn et aI., supra n.211 at 130. In explanation of the reference to
"most" independent agencies: "The members of the Federal Communications Commission, the Federal Energy Regulatory Commission, and the Securities and Exchange Commission, unlike their munterparts in other agencies are not statutorily
protected against summar), remo\"al from office . . ." - apparently because those
agencies were created after the postmaster case and before the FTC and \\'::IT Claims
Commis."ion cases, "at a time when legislative draflsmen believed the President's
power to be illimitable." Id. at 131 &- n.7. Members of the three agencies memioned
doubtless have no less protection against summar)" removal, in view of the fact that
the statute in the War Claims Commissioner case (Wei7lcT, supra n.288) had also
been silen t on removal.

94

1. Some General Observations on Law and the Legal System

administrative agency policy through appointments - a majority of

which, some studies also suggest, have been made for "partisan political
reasons."' Congress cannot take this appointing power to itself. In
1976 the Supreme Court invalidated the statutory requirement that
some members of the Federal Election Commission be congressional
rather than presidential appointees.'.!
3. Equally important as an executive control over administrative
agencies is a presidential bureau (the Office of Management and
Budget, previously described under the "Chief Executive" heading),
which exercises a coordinating and "oversight" function over executive
and administrative agency activity as well as handling their requests
for substantive legislation and for funds.'.' The OMB played the
central role in the Executive Order efforts of Presidents Ford, Carter,
and Reagan to coordinate and control more closely than hitherto the
regulations issued by executive and administrative agencies. Under the
Ford Order,'.3 major rules, regulations, or legislative proposals ema
nating from "executive branch agencies" had to be accompanied by an
"inflation impact" statement; and OMB developed the criteria for
identifying these "major" rules and proposals and prescribed procedures for their evaluation by the agencies. The Carter Order covered
broader ground. It required that the heads of executive agencies (the
"independent regulatory agencies" were again exempted) make specific
determinations regarding understandability and burdensome ness of
"significant" reguiations, and that a "regulatory analysis" be prepared
for those significant regulations that "may have major economic
consequences for the general economy, for individual industries,
geographical regions or levels of government," among other requirements.'' And the OMB was to "assure the effective implementation of
this Order." After publication in the Federal Register of their preliminary plans and criteria for compliance with the Order, the agencies
had to submit their revised drafts to the OMB for approval before
final publication.
290. ld. at 126127.
291. Buckley v. Valeo, 424 U.S. I (1976).
292. See Berman, The Office of Management and Budgel and [he Presidency.
19211979 (1981).
293. Exec. Order No. 11.821 (1974),3 C.F.R. 926927 (197J.I975 Compilation).
294. Exec. Order No. 12.044 (1978), 43 Fed. Reg. 12,661. reprinted i7t 7 u.s. Code
Congo &: Ad. News 9680 (1978). The agencies had to publish at least semiannually an
agenda of "significant"' regulations under de\"elopment or redew. The agency head
had to exercise "oversight" before developmem of any significant new regulation. An
early and meaningful oppOrlUnil)' had to be given to the public 10 participate in
the de\'elopment of regulations. Before a proposed significant regulation was Pl'!")'
lished for comment, the agency head must first ha\'e found thal cenain specified
criteria had been met (e.g., the regulation had to be the least burdensome of acceptable alternatives, written in plain English, and understandable to those subject to
it; an estimate of the new reporting or record keeping burdens in\'olved had to be

D. Agencies and Techniques of Law

95

The Reagan Executive Order is broader still, and the power of

the OMB stronger and more explicit. The Order, it has been said,
gives "OMB tremendous power over the substance and timing of
regulations," and "new opportunities for interested persons to influence the regulatory process," i.e., by attempting to influence the
OMB. 5 Under the Order, executive agencies (again the "independent
federal regulatory agencies" are exempted) must find, before undertaking regulatory action, that "the potential benefits to society outweigh the potential costs to society"; they must aim at "maximizing
the net benefits to society" and select "the alternative involving the
least net cost to society"; and they must establish regulatory priorities
that maximize the "aggregate net benefits to society, taking into account the condition of the particular industries affected by the regulations, the condition of the national economy, and other regulatory
actions contemplated for the future." "Major" rules, affecting the
economy in a substantial way, must meet special requirements, including issuance of a "Regulatory Impact Analysis," for existing as well as
proposed major rules . This RIA would analyze costs and benefits
and explain why less costly alternatives could not legally be adopted.

included; and a plan had to be developed for e\'aluating the regulation after
issuance).
Agencies were ordered to establish criteria, induding effect on competition,
burdensomeness, and relation to other programs and agencies. for identifying which
regulations were "significant." The criteria for determining which of the significant
regulations required a "regulatory analysis" had to ensure that such analyses were
perfonned for all regulations resulting in "an annual effect on the economy of $100
million or more," or "a major increase in costs or price for indi'\:idual industries,
levels of go . . ernment Or geographic regions"; and had to permit such analyses to be
performed at the agency head's discretion, for any proposed regulation. Agencies
had to periodically review existing regulations to determine whether their standards
were achieVing the policy goals of the Executive Order. Among the exemptions ,,ere
regulations issued on a formal triallype hearing record (the usual regulation is not).
President Carter also established a Regulatory Analysis Review Group (RARG)
to rniew the analyses accompanying proposed regulations, and a Regulatory Coun
cil, composed both of executive departments and independent regulatory agencies.
The Council coordinated and dealt with problems of o'Verlapping, duplicating, and
conflicting regulations. It also pUblished a Calendar of Federal Regulations 10 give
an oveniew of the most important federal regulatory acthities under dnelopmenl.
The Administ1"3li\c Conference o( the United Siaies issued a guide to assist the
agencies. 43 }'ed. Reg. 36.112 (1978).
295. Rosenthal. Executh'e Order on Regulation Boosts OMB's Power, Legal
Times of Washington. March 16. 1981. at 14. It is Exec. Order No. 12.291. Feb. 17.
19B1. 46 Fed. Reg. 13,193 (19B1).
296. \-Vhen I say "substantial \\"ay" I am referring lO the definition of "major
rule," which repeats the Carter Order's conditions for mandatory regulatory analysis
(see the reference supra n.294 to annual effect on the economy and major increase
in cost or prices) and adds the following concem: significant adverse effects on
competition, employment. investment, producti\ity. inno\ation. or on the ability
of United States based emerpris{'s 10 compete with foreign,based enterprises in
domeslic or export markets.

96

I. Some General Observations on Law and the Legal System

The OMB exercises close supervision in this respect, subject to direc

tion of the Presidential Task Force on Regulatory Relief. And before
approval of a major rule, the agency, in a memorandum of law pub.
lished in the Federal Register, must determine that the rule is author
ized by the statute and the factual conclusions have "substantial
support in the agency record, viewed as a whole."
Though obviously influential, the OMB cannot legally force its
position on the agency; but it can require an agency to make an RIA
and demand that its critical comments along with the RIA be part of
the public record. It also has discretion, subject to Task Force direction, to exempt any class of regulations from any or all requirements
of the Order. The Order applies only "to the extent permitted by law;'.
and would therefore bow to contrary provisions of any statute?'
Among other problems,2 doubtless the greatest difficulty presented by the Order is how to weigh economic costs against noneconomic benefits (health, life, safety, fair and equal treatment,
conservation of resources and environment, esthetic satisfaction, and
the like). Along with other issues in the methodology and proper role
of cost-benefit analysis, this crucial consideration has produced, and
will continue to produce, a lively literature?'.
4. Whatever the difficulties in administering the specific economic
concerns of this Order, there is no doubt that its function of coordination under the President of heterogeneous agencies' rulemaking activity
297. One such statute was the Occupational SafelY amI Health Act. which [he
Supreme Court in ]981 inlerpreted 35 nOI haying intended a cost-benefit standard to
be applied to OSHA's "COlion dust standard." American Textile Mfrs. Instil. ,',
Donovan, 69 L. Ed. 2d 185 (1981).
298. Criticisms have been made, for instance. that the judgments of the OMB
and the presidential Task Force will be more polilicai than expert; that the additional burdens put on agencies by the Oruer wil1 substantially aggraY3le the problem
of delay and cost in agency operations; that the Older is excessi,e1y concerned with
economic considerations; and that there are ambiguities to be resoh'ed, such as:
'What statutory language of the agency's governing sta[U[e wiH allow a court to say
that the different criteria of [he Order are "permitted by law"? ''\~hat standard of
judicial re\'iew is to be applied by the courts in re\iewing the record of adoplion o(
a regulation pursuant to the Order? Bliss, Regulatory Reform: Toward More
Balanced and Flexible Federal Agency Regulation, 8 Pepperdine L. Re\". 619, 6:,1;1-637
(1981).
299. See Note, Benefit Analysis: An Inadequate Basis (or Health. Safet), and
Em'ironmenlal Regulatory Decisionmaking. 8 Ecology L.Q, 473 (1980): Use of CostBenefit Analysis B) Regulatory Agencies: Joint Hearings Before Subcomm. on O,'ersight and In\'estigations and Subcomm. on Consumer Protection and finance o(
the House Interstate and Foreign Commerce Comm., 96th Cong .. 1st Sess. (1979);
SymPOSiUIlI, Cost-Risk-Benefit Assessment ami the Law, 45 Ceo. \V:lsh. L. Re\". 901
(J9i7); Subcomm. on O\ersighl and In\'estigations. House Comm. on Interstate amI
Foreign Commerce. Federal Regulation and Regulatory Reform, 94th Cong .. 2nd
Sess. 505-515, 555 (1976) [Subcommittee Prinr]; Sympmium. "aluing Lins. 40 L. &
Con temp. Probs . 1'0. 4. esp. 5-72 (1976); Green, The RiskBenefit Calculus in S:lft'ty
Determinalions, 43 Ceo. \r\'ash. L Rev. 791 (l9i5); Handler. A Rebu[tal: The Need
FOT A Sufficient Scientific Base For GO\'ernment Regulation, id. at 808.

D.

Agencies and Techniques of Law

97

(in addition to development of more uniform criteria in the approach

to economic regulation) represents a defensible and increasingly pop
ular idea. Thus a 1975 proposal by two practitioners. under which
Congress would authorize the President to have even more control
over regulations than under the 1981 Order (i.e . "to modify or
direct" both executive and independent agency rulemaking when
necessary to achieve "an important national objective." as well as "to
set priorities among competing statutory goals) - subject to a one
House congressional veto and to expedited judicial review"soo - has
been well received even in academic circles. SOl Inclusion of the oneHouse veto. a technique discussed later under "Legislature and Administrative Agencies." is important. Without it. Congress would not be
likely to accede to the proposed heightening of presidential power.
The power would apply. remember. to even the independent agencies
(agencies that Congress tends to think of as closer to itself than the
executive bureaus). Rather than answering only to the executive
branch. agencies. through the inclusion of the veto. would come under
the close supervision of both Congress and the President. This bringing
of agencies into line with the "politically accountable branches of
government' is presumably a worthy goal in a democracy.
However. is the proposal constitutionally valid? As will appear
in a later discussion. it is not yet clear whether the one-House veto
as applied to regulations is constitutional; nor is its validity clear as
applied to presidential directives. Validity of just the congressional
permission for substantive control by the President over rules of
executive and independent agencies is somewhat more clear.so, What
300. Cutler & Johnson, Regulation and the Political Process, 84 Yale L.J. 1395.
1414 (1975).
301. Byse, Comments on a Structural Reform Proposal: Presidential Directives
to Independent Agencies. 29 Ad. L. Rev. 157 (1977); Gellhorn et .1 . supra n.211 at
134. n.lO. But see Robinson. On Reorganizing Independent RegulalOry AgenCies. 57
Va. L. Rev. 94i. 984 (1971); Friendly. The Federal Administrative Agencies ]53 et
seq. (1962). An ABA Commission has supponed similar stalutory rulemaking powers
for the President with respect to "critical regulatory issues" (those that aTe of major
significance to the national economic interest and "to (he achievement of statutory
goals other than the goa] primarily emrusted to the regulatory agency in question").
ABA Commission on law and the Economy, Federal Regulation: Roads to Reform
101 (1978).
302. It is true that pre\'iously discussed decisions distinguished between executj\'e
agencies and the "independent" or quasi-judicial, quasi-legislative agencies (so as
to permit presidential remo\'al of a postmaster without the congressional conseD[
thal a statute had specified as necessary, but to preclude remo\'al of a Federal Trade
Commissioner or War Claims Commissioner on grounds other than those expressly
or impliedly (;onlemplated by Congress for removal). But these decisions do not seem
to stand in the way. In the laller two Commissioner cases the will of Congress stood
in the way of the particular presidential control of independent agency personnel.
Under the proposal, the will of Congress does not stand in the way of preSidential
direction of independeOl agency rulemaking; il aut/101';:'CS presidential direction. As
for the objection that the Chief Executive would be exercising legislati\'e rather

98

I.

Some General Observations on Law and the Legal System

may be legally more questionable are presidential exercises of such

powers (and some have already occurred)303 without the proposed

statutory authorization. I.e., a statute that has entrusted the rulemaking
authority to a particular official or agency (rather than, as sometimes
happens, to the President who then delegates authority) might be read
as a grant of exclusive authority, precluding presidential rule modifica
tion or direction, or perhaps even presidential "jaw.boning."
5. There are still other modes of Chief Executive influence over
the agencies. One is a power to organize a new agency to carry out some
of the President's executive powers - as, for instance, was done in
World War II with creation of labor, price, and transportation agencies
by Executive Order (with Congress sometimes displacing the authorit}
than executive power. the executive and independent agencies have been doing
so all along. by delegation from Congress of the Tulemaking power: Congress would
now be delegating to the Chief Executive, Further. under the proposal any agency
rule resulting from the President's directjve would be subject to judicial rede\\' for
conformity wjth the statutory powers of the agenC)" and other applicable statutes as
weB as with comaitutionaJ requirements. Concei\'ably. though. '3 court might object
that the gran! of power to the President is standaTdless and hence an invalid delega
tion of legislati\"e power. Note, 89 Yale L.J. 561. 573578 (1980).
As for an objection that constitutional due process considerations bar the
While House from making "ex parte" contacts (i.e" unrecorded contacl~ with
government personnel by an interested party, in whal purpOTIS to be an "open"
agency proceeding): The judicial ban on such "ex pane" contacts has indeed been
applied to contacts by pri\'ate persons, and by Congressmen, in formal proceeding!';
and there has been some lower court extension of the ban to som(' kinds of agenc~'
informal proceedings including rulemaking, and some thinking that courts might
take the more controversial step of extending the ban further to \,'hilt:' House
contacts. See Bruff, Presidential Power and Adrninistrati.;e Rulemaking. 88 Yale LJ.
451. 500508 (19;9). BUI (1) it is doubtful that the Supreme Court would thus extend
the ban to White House contacts in connection with informal (i.e., "nolice and
comment") rulemaking. See Verkuil, Jawboning Administrative Agencies: Ex Parte
Conlacts By the White House, 80 Colum. L. Re\". 943. 9iO98~ (1980). (2) In any
event, the proposed presidential powers difft:r from the influence exrrtrd in the
"ex parte" cases not onl)' in being congressional1y authorized but also in not fitting
the "ex pane" description. The President's EXt'cuth'e Order could not be iss-uf"d
until 30 day!i. after publication in the Federal Regi!i.ler of his proposed aClion,
together with supporting findings, and an opporlunity in that period for written
comment; amI a public record of such commems and ex parte contacts would haH'
lO be kept. See Cutler &: Johmon, supra n.300 at 1415: \'erkuil. supra al 983-9~5.
Similarly inapplicable would be the statutoTY ban undrr the Administralj\-C' ProcC'dure Act (5 U.s.c. 55i(d)) against ex partt communications "relath-e to the merits
of the proceeding," from any interested person outside the agency to anyonr who
is, or may be expectC'd to be, invoh'ed in the decisional process of a formal
proceeding. An)' such wri((en communications, memoranda stating the substance of
oral communications, wriuen responses and memoranda stating the substance of oral
responses, must be made part of the public record. "Ex parte communication" is
defined in 5 U.S.c. 55J (14) as "an oral or ""rillen communication not on the
public record with respeci to which r~asonable prior notice to alJ parties is not
gil-en, but it shall not include requests for status rrports. , .. "
30.3, See \'erkuil. supra n.30.2 at 944-9-n (concerning the Secretary of Lahor's
cotton dust standard, the Environmental Protection Agenc)"s ozone level standard,
and the Secrctary of Interior's stripmining rules).

D. Agencies and Techniques of Law

99

of the Order by a statute on the subject), and as was done by Nixon in

creation of the Cost of Living Council in 1971 to administer wage and
price restraints. On this matter of delegation by the President - either
of his existing executive power or powers delegated to him by statuteit is of course true that an occasional statute may require particular
decisions to be made only by the Chief Executive, or only by the head
of an agency. But in the absence of such provision, it is usually assumed
that the authority to delegate to subordinates does exist; and in 1950
Congress officially recognized the President's authority, within certain
broad limits, by the Presidential Subdelegation Act. Not only can the
President organize, he can reorganize agencies, and has done so - by
virtue of a series of shortterm statutes commencing in 1932, under
which a Reorganization Plan sent to the Congress is subject to disapproval by either House.'o,
In addition, the President can influence the attitudes and actions
of executive and administrative personnel through policies communi
cated in Cabinet meetings, speeches, press conference statements, and
informal con tacts. a05
6. In spite of the foregoing catalogue of presidential influences,
some strong practical limits must be recognized. Scholars point to the
fact that agencies become allied to or influenced by legislative com
mittees and subcommittees, the industries being regulated, and other
interest groups. This alignment, along with the "transitory nature of
political leadership, the entrenched position of an increasingly pro
fessionalized public service [serves] to undermine the already limited
capacity of the president to function as 'administrator-inchief' of the
modern administrative state.".o. The Hoover Commission is described
as reporting a generation ago that "administrative organizations have
become so fragmented by Congressional interest in their management
that 'many departments and agencies are but loose federations of
bureaus and subdivisions, each jealously defending its own jurisdic
tion: "a07 President Truman claimed that presidential power amounted
to the power "to bring people in and try to persuade them to do what
they ought to do without persuasion"; and the Russian Tsar Nicholas
is quoted as saying that Russia was ruled not by himself but by 10,000
c1erks.ao.
304. On this paragraph. see Gellhorn el aI., supra n.211 at 142-144. For details
on reorganizations see Dodd & Schott, supra 0.233 at 331-348; Mansfield. Federal
Executi\'e Reorganization: Thirty Years of Experience, 29 Public Ad. Rev. 341 (1969).
305. See Verkuil. supra 0.302; Robinson, The Federal Communications Commission: An Essay on Regulatory Watchdogs, 64 Va. L. Rev. 169, 206212 (1978).
306. Dodd & SchoLt, supra n.233 at 322.
307. Gellhorn et aI., supra n.211 at 143.
308. [d. at 144-145. The disease affects agency heads as well as Presidents.
Warner Gardner, an experienced '\r\'ashinglon practitioner. once said. "I have
discovered to my cost that the directions of an Assistant Secretary of Imerior to the

I.

100

Some General Observations on Law and the Legal System

While the OMB has had some coordinating effect, the tendency
of the independen t agencies is to follow the clearance proced ure less
fully than the executive bureaus have. Congress, in the creation of
particular agencies, has sometimes called for direct submission of
budgetary and substantive requests and comments to Congress TlO later
than the submission to OMB; and bills have been introduced to free
all independent agencies from the OMBs prior coordination process. 30S
This refusal of Congress to give up control introduces the subject of
the next section.

b.

Legislature and Executive

The indicated clash between the President and Congress in the

control of the agencies is not the onl y area of conflict.
I. First established in the Constitution's outlining of those powers
of the two branches that curb each other, and later developed in the
practical operation of government, the thrusts and counterthrusts of the
legislature and executive have become a prominent feature of our gov
ernment. The President's veto power3lO over congressionally approved
bills is just one of these checks. He also of course exerts influence over
Congress through his power over patronage, the allocation of funds
and projects, and the doing of favors asked by legislators or their con
stituents. More indirect presidential pressure is wielded through, for
instance, the kind of direct appeals to the voter that were mentioned
above in discussing presidential pressure on the agencies.
You know, too, that Congress exerts countercontrols. By a two
thirds vote of both Houses, a veto can be overridden. Congress also
exercises a veto of its own - the "legislative veto" by which Congress
or one House or committee thereof may, pursuant to a statute, dis
approve the exercise of authority that it has delegated to the President
Bureau of Reclamation. wilh its wide congressional and popular SUppOrl, can hardly
be more than hortatory. I ha\'e been consoled by the disco\"ery thai the same m.l)'
be said of the directions of [he Secretaries of \Var as to the civil work of the Corps
of Engineers." Gardner, The Administrative Process. in Paulsen, ed., Legal Institutions Today and TomorrOl\' 123 n.47 (1959).

309. Gellhorn et al .. supra n.211 at 140141.

310. A counterpart, of course, exists on the state level: In the case of appropriation bil1s, twentieth-century slate constitutional amendments gave governors au
thority to veto in whole or in part (the latter being an "item ,eto". The item \'eto
power "materially increased not only the governor's formal power but also his
bargaining power with the legislature, compared with the allor-nothing options to
which the general veto restricted him. By late twentieth century the ilem \'{'to has
become a firmly entrenched part of stale fiscal policy. in controversy only insofar as
a governor might in practice try to stretch it to allow him lO strike substantive policy
items from a bill because the bm appropriated money." Hurst, Law and Social Order
in the United Slales IlJ-1I2 (]9i7).

D. Agencies and Techniques of Law

101

or to the agencies (a device that we have referred to in the preceding

section on relations between the President and the agencies and that
will be discussed more fully below).sll Presidential appointments are
subject to Senate approval, by majority vote, under the constitutional
clause that such appointments of federal "officers" be "by and with the
advice and consent of the Senate" (though the appointment of "inferior
officers" may be vested by Congress "in the President alone, in the
courts of law or in the heads of departments"). Congress can remove
the President by impeachment, with the House investigating and bringing charges, and the Senate sitting in judgment; you will recall that the
impeachment articles voted by the House Judiciary Committee at the
end of July, 1974 pressured President Nixon's resignation on August 9,
1974.S12
2. In general, even though Executive Orders (issued pursuant to
the constitutional vesting of executive power in the President) can be
significant exercises of power of both an executive and legislative nature, they cannot go beyond certain bounds expressly or impliedly set
by the legislature. The legislature may of course expressly confer considerable power on the executive - as, for instance, when it passes a
statute authorizing certain authority over a particular subject and
authorizes promulgation of legislativetype regulations. And there may
be times when the Executive can act without such authorization from
Congress if he is acting in an area where executive and legislative au
thority is deemed to be "concurrenl." But if a court concludes that the
executive action is inconsistent with the express or implied will of the
legislature, the executive action cannot stand. President Truman discovered this truth when the Supreme Court invalidated his 1952
attempt to avert a steel strike by seizing the steel mills during the
Korean War. sls
3. Presidential power over the budget (through the OMB) was
substantially modified by Congress's reassertion of budgetary power in
the Budget and Impoundment Control Act of 1974. The Act "created
new House and Senate budget committees, the Congressional Budget
Office (a full-time professional staff for analytical studies), a complex
set of budgetary procedures, a time table for budgetary actions, a
change in the fiscal year [to begin October I], requirements for standardized budget terminology and information for the President's
31 I. A fuller discussion is to be found under "Legislature and Administrative
Agencies,"
312. See House Judiciary Comm., Impc<lchment of Richard M. Nixon, President
or the United States. Report No. 931305. 93 Cong . 2d Sess. (1974); Black. Impeach
ment: A Handbook (1974); Berger, Impeachment: The ConstiLutional Problems
(1973).
313. Youngstown Sheet & Tube Co. v. Sawyer. 313 U.S. 579 (1952); Marcus.
Truman and the Steel Seizure Case: The Limits of Presidential Power (1977).

102

I.

Some General Observations on Law and the Legal System

budget, and provisions for controlling presidential impoundments.""<

Recent observation suggests that the congressional budget committees
"have not been able to take complete control of the budget, but each
year they have managed to be more assertive, and their decisions have
been reinforced by the House and Senate. Budget-making is still incre
mental, but the mechanism is in place to allow the Congress to address
broad problems generated by the uneven process of accumulation that
the previous decisionmaking pattern had difficulty confronting. The
'larger' perspective is encouraged by the Congressional Budget
Office."SI'
The provision on "presidential impoundments" in the 1974 law
deals with the presidential practice - which had provoked much controversy.during the Nixon administration - of refusal to allow spending of actual appropriations for particular purposes. The practice was
nothing new, but its limits had never been clearly fixed. The 1974 law
introduced an accommodating solution: The Act allows an executive
"rescission" or permanent impoundment if the President has sent a
special detailed message to both Houses proposing such a move and
both Houses respond by approving it within 45 continuous days of
congressional session. A "deferral" or temporary impoundment for 12
months or less is allowed if the President sends a special message as
above, and neither House passes a resolution disapproving the deferral
(no time limits on disapprovals are mentioned)."I. "The new impoundment control process has worked smoothly and has had a significant
impact on the pre-1974 trend toward centralization of budget power in
the president."3"
4. Another important aspect of legislative-executive relations is
the question of limits on legislative power to obtain information from
the executive. Congress has a potent power of investigation,31. but the
executive branch sometimes counters with a power of nondisclosure
stemming from the doctrine of "executive privilege: President Eisen314. Ellwood &: Thurber, The Politics of the Congressional Budget Process
Reeexamined. in Dodd &: Oppenheimer. Congress Reconsidered 251 (2d ed. 1981).
315. Brenner, An Approach to the Limits and Possibilities of Congress. in Dodd
&: Oppenheimer. id. at 380. The pre\'ious pattern referred to was thus described by
Ellwood & Thurber. id. at 248: "Each year (:ongress would take the President"s tOlaI
budget. chop it up into small pieces, and parcel them out among cornminecs and
subconunittees that would work on them with little regard for the impact their
particular changes might haye on the whole."
316. See Ellwood & Thurber, id. at 246. 264-267: Munselle, Pre'sidential Impoundment and Congressional Reform, in Rieselbach. Legislative Reform 173181
(1978).

317. Ellwood & Thurber. supm at 267. Presidential "deferrals" during 1976
1980 have had a success rate per year ranging from 63 10 99% with a median in the
upper 90s; but "rescissions" haye been less successful. ranging (rom 0 to 80'."';, per
year: 0 for one year; and 4%. 37%. 46%. and 80% for the olher four. [d. at ~65.
318. See references supra n.237.

D. Agencies and Techniques of Law

103

hower sketched the doctrine broadly when he wrote to a congressional

committee that "throughout our history the President has withheld
infonnation whenever he found that what was sought was confidential
or its disclosure would be incompatible with the public interest Or
jeopardize the safety of the nation";31' and the Department of Justice
has claimed that a similar privilege exists in the heads of depart.
ments. 300 The privilege is seldom invoked, however, against Congress.
The Department of Defense reported in 1958 that in a threeyear
period it had complied with 300,000 inquiries from Congress and had
refused to comply in only 13 instances. S01
There has been more occasion for refusal under the 1966 Freedom
of Infonnation Act, pursuant to which the executive and administra
tive agencies have received multitudinous inquiries from the public as
well as from congressional sources. The Act requires disclosure of government records to "any person," with stated exemptions (in 5 U .S.C.
552(b)). While executive privilege is not mentioned as such, something
similar is included in the first exemption, preserving "national defense
or foreign policy matters" that are "(A) specifically authorized under
criteria established by an Executive order to be kept secret . . . and
(B) are in fact properly classified pursuant to such Executive order";
and in the fifth exemption, for "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other
than an agency in litigation with the agency"; and in the seventh exemption, for "investigatory records compiled for law enforcement purposes," to the extent that disclosures would interfere with enforcement
proceedings, disclose investigative techniques and procedures, endanger
law enforcement personnel, deprive a person of procedural or privacy
rights, disclose identity of a confidential source, or disclose certain
confidential infonnation in specified types of cases. "Any reasonably
segregable portion of a record shall be provided to any person requesting such record after deletion of' the exempt portions. S22
3]9. Hearings on S. 921 (Freedom of Information and Secrecy in Government)
Befor' the Subcomm. on Constitutional Rights, Senate Comm. on the Judiciary. 85th
Cong . 2d Sess. 271 (1958).
320. See id. at 63146.
321. Id. at 383387.
322. The wording of the first exemption 'stems from a 1974 Amendment. The
laner attempted 10 liberalize a holding of E.P.A. v. Mink. 410 U.S. 73 (19i3). In
that case some members of Congress sought under the Freedom of Information
Act 10 obtain severa] government documents containing recommendations to the
President with respect to underground nuclear testing. The Court held tha [ the
executive classification as "Top Secret" or "Secret" was enough to trigger the exemption, and that the Act did not authorize or permit the judges' in camera
inspection of the classified documents in order to authorize disclosure of nonsecret
components. Further, the fifth exemption was held nOI to exempt purely ,factual
material appearing in a fonn which is severable l\'jthoU! compromising the pri .... ate
remainder of the memorarida; but instead of authorizing automatic in camera

104

1. Some General Observations on Law and tbe Legal System

Some dramatic executive privilege cases, not under the Freedom of

Information Act, were decided in the Nixon era. I am referring not
to the "Pentagon Papers" case, whose central problem was not a legis.
lative-executive conflict,S23 but to litigation involving the embattled
. President in his scandalwracked second term. Afler a White House
aide had disclosed to Senate investigators that the President had tape
recordings of all conversation in the President's office, two subpoenas
were issued against the President. One, obtained by Special Prosecutor
Archibald Cox from the District of Columbia District Court, required
the production, before the grand jury investigating the Watergate
alleged criminal conspiracy to obstruct justice (a conspiracy by the
President, his Attorney General, and key White House aides),'" of
the tapes and written memoranda recording nine specified conversa
tions. The other, seeking various tapes, was obtained by Senator Sam
Ervin's Select Committee investigating the Watergate affair.
a) The suit of the Senate Committee to enforce its subpoena was
dismissed by the district court on the ground that the coun lacked "ju.
risdiction," i.e., authority to hear such a case. S25 A later suit under a
new jurisdictional statute was dismissed for other reasons. The district
inspection by the district court for factual material, the Court said the go\'ernment
should have the burden of showing by affida\'jts or oral testimony that documents or
portions contained no purely factual material. Only if this burden is not met may
the district court order an in camera inspection.
The few courts that have had to interpret the new language "ha've in fact
tended to accord substantial weight to executive branch views on classification, and
to avoid in camera inspection where circumstances pennitled judgment on the basis
of a sufficiently detailed affidavit. See. e.g. Weissman v. CIA. 565 F.2d 692 (D.C. CiT.
1977): Note, 26 U. Kan. L. Rev. 617 (l9i8)." GeJlhorn et aI., supra n.~11 at 594.
In 19j5 the Supreme Court ruled that the fifth exemption calls for "disdosures
of all 'opinions and interpretations' - which embody the agency's effecti"e law and
poHcy, and the withholding of all papers which reflect the agency's group thinking
in the process of working out its policy and determining what its law shaH be." The
Court further ruled that the fifth ex.emption was intended to indude the "attorney
work product priviIege" which exempts the attorney's work product from ci\"il
"discovery" procedures (see, on disco,'ery. Chap. 2 herein under B9): and "whatever
the outer boundaries of the attorney work product rule are, the rule clearly applies
to memoranda prepared by an 'anorney in contemplation of litigation \\'hich set
forth the atlorney's theory of the case and his litigation strategy."' NLRB v. SeJrs
Roebuck & Co., 421 U,S, 132 (1975). GeneralI}' on the Act see Gellhorn et al.. supra
n.211 at 579624; O'ReilJy. Federal Information Disclosure (1977).
323. This ]97) decision held that the gOHrnmem had not met its burden of
proof to show justification for an injunction (3 "prior restraint') against newspaper
publication of a confidential Pentagon history of Vietnam \4"Tar policy: and it left
open the question of criminal liability of those doing the publishing and those who
unaUlhorizedly take such documents and supply them for publication, ~ew York
Times Co. Y. U.S., 403 U.S. 713 (1971). See Henkin, The Right to KnO\\' and the
Duty to Withhold: The Case of the Pentagon Papers. 120 U. Pa. L. Re\', 271 (19i2);
Developments in the La\\': The National Security Interest and Ci,"il Liberties, 84
Han'. L. Re,. 1130. 11891~44 (19i~).
324. The President was named as a conspirator bUI "'as not charged with a
criminal offense as were the others.
325. Senate Select Comm. v, Nixon. 366 F. Supp. 51 (D.D.C. 19i3). Federal court

D. Agencies and Techniques of Law.

105

courfs reason was that the publicity might prejudice the expected
criminal trials. Its judgment was affirmed on a different ground: True,
"presidential conversations are presumptively privileged," to ensure
"that the President and those upon whom he directly relies in the
performance of his duties could continue to work under a general
assurance that their deliberations would remain confidential." The
presumption "can be defeated only by a strong showing of need by
another institution of government:' But here the subpoenaed evidence
was not "demonstrably critical to the responsible fulfillment of the
Committees functions." Since creation of the Senate Committee, the
House Judiciary Committee had begun its impeachment inquiry and
already possessed copies of each of the five subpoenaed tapes; and the
Presi dent had publicly released transcripts, wi th partial deletions, of
each of the tapes in question, and had transmitted the originals of four
of the tapes to the district COUTt in response to a grand jury subpoena."
b) The litigation involving the grand jury subpoena and a later
subpoena after the grand jury indictment does not squarely reflect a
Congress-President conflict, but is relevant to such conflicts because the
litigation ended in the Supreme Court and revealed that Court's attitude on executive privilege. In spite of Nixon's claim of executive
privilege, District Judge Sirica ordered the President to produce the
tapes and papers for the grand jury and was affirmed by the court of
appeals_32; At this point, Nixon changed his tactics. Claiming he would
no longer submit the issue to the COUTtS, he agreed to let the court have
only those of the nine tapes which Senator Stennis of Georgia (a conservative, friendly to the idea of executive privilege) thought should
be delivered, and he would not turn over any subpoenaed papers.
He instructed the Special Prosecutor not to seek court aid for production of evidence withheld under claim of executive privilege. On Cox's
refusal, Nixon dismissed him. This "evoked a public reaction which
[Nixon's] chief aide later described as a 'fire storm: Within seventytwo hours the President changed his mind and promised to comply
with the decree. A bit later, a new Special Prosecutor [Leon JaworSki]
- d. _ ., "3')8
.
was appomte
After the grand jury had returned an indictment, Jaworski obtained a further subpoena to Nixon. from the district court,s whose
judgment was appea~ed to the court of appeals. By a special by-passing
jurisdiction depends upon [he existence of a statute giving jurisdiction (or the
type of case im"oh-ed. No such statute for this type of case was found to exist.
326. Sen a,. Selec, Comm. ". Nixon. 498 F.2d 725.730.731.732 (D.C. CiT. 1973).
affirming 370 F. Supp. 521 (D.D.C. 1974). See Cox. The Role of the Supreme Court
in American Government 26-~7 n.4 (19i6).
327, Nixon v. Sirica. 487 F.2d 700 (D.C. Cir. 1973). affirming 360 F. Supp. 1
(D.D.C. 1973).
328. Cox. 5up,-a n.326 at 8.
329. U.S. v. Mitchell et al .. 377 F. Supp. 1326 (D.D.C. 1974).

106

I.

Some General Observations on Law and the Legal System

procedure ('"certiorari before judgment" of the court of appeals, used

for cases of public importance requiring prompt resolution), the Suo
preme Court quickly granted certiorari, and affirmed the district court
unanimously, Justice Rehnquist not participating. Chief Justice
Burger's opinion acknowledged that the "President's need for complete
candor and objectivity from advisers caiis for great deference from the
courts." But a generalized claim of executive privilege (as distinct from
a specific claim of "need to protect military, diplomatic, or national
security interests") could not outweigh in this case the "demands of
due process of law in the fair administration of criminal justice"; it
was "difficult," in this case, "to accept the argument that even the very
important interest in confidentiality of Presidential communications
is significantly diminished by production of such material for in camera
inspection with all the protection that a district court will be obliged
to provide. "330
Thus the courts have made clear, just as the Freedom of Informa.
tion Act exemptions had made clear, that there is a legitimate role for
executive privilege - though the precise character of that role in dif
fering circumstances is still uncertain. S3l
5. Congress as part of the post.Vietnam and postWatergate reac
tion to the "imperial Presidency" has also taken anti-executive action
in the area of military and emergency matters_ The "Var Powers Resolution of 1973,332 enacted over Nixon's veto, declared its purpose to be
insuring "that the collective judgment of both the Congress and the
President will apply to the introduction of United States Armed Forces

330. U.S. Y. Nixon, 418 U.S. 683, 706. 713 (19i4). The Court outlined guidelines
for the district COUrl'S in camera inspection of the subpoenaed materials. The COUft
made other rulings. induding the point that the Attorney General's statutoT)'
powers to conduct go\'ernrnenl criminal litigation and to appoint subordinate
officers authorized his issuance of a regulation with the' force of law that did the
foUo\'oing: It appointed the Special Prosecutor, giying him a special independence
with explicit power to contest the claim of executive pri,:i1ege, and assuring him.
pursuant to assurances from the President. that the laller would not remove him
from his duties- except for "extraordinary improprieties" and after [he Presidenr"s
consulting and finding an approving consensus in the Majorily and Minority
Leaders and Chairmen and ranking Minority Members of the House and Senate
Judiciary Commitlees. The Court further found. inLer alia. that the conrroycl"sy was
"justiciable" (see Chap. 2 herein under B6) despite the fact that it was bel ween a
subordinate and superior officer of the executive branch. In 1978 Congress itself
enacted, as part of the Ethics in Government Act. a special prosecutor statute to be
in effect [or five years. 5 U.S.c. 591-598. See Ci\"ilel~i. Post"'atergale Legislation
in Retrospect, 34 SW. L.J. 1043, 1052-1056 (1981).
331. See generally on execuri\'e pri\ilege. Berger, EXeculjYe Pri\'ilege (1974):
Cox, Executive Privilege. 122 U. Pa. L. Rev. 1383 (197..f); Symposium. LlnilC'd Slales \'.
Nixon. 22 U.CLA. L. Rev. 4 (19,4); Note, 76 Colum. L. Rey. 142 (19,6); U.S. v.
Reynolds, 345 U.S. I (1952).
Nixon, 22 U.C.L.A. L. Rev. 4 (19i4); Note, 76 Colum. L. Rev. H2 .19i6): U.S. v.
News 2316 ct seq. (1973).

D.

Agencies and Techniques of Law

107

into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances, and to the continued
use of such forces in hostilities or in such situations."333 The purpose
of the National Emergencies Act of 1976."34 according to the Senate
Committee Report, was "to tenninate, as of 2 years from the date of
enactment, powers and authorities possessed by the Executive as a
result of existing states of national emergency, and to establish authority for the declaration of future emergencies in a manner which will
clearly define the powers of the President and provide for regular
Congressional review. "335
My exploration of the interrelations between Congress and the
President is now completed.330 Certainly not all such interrelations have
been identified or developed in detail."3; but at least some major ones
have been broached.
333. In rough summary: When the President unilaterally decides to send United
States mi1ilary forces "into hostilities or into situations where involvement in
hostilities is clearly indicated by the arcumstances," he must within 48 hOUTS repan
10 Congress concerning the circumstances. justification, and estimated duration of
the inYoi\'ement. and must periodically report thereafter during its continuance. He
must temlinale the use of armed forces within 60 days from the date required for
the repon or date of the actual report, whichever is earlier (with possible extension
of another 30 days) unless Congress declares war or othen.. ise Votes appro\'al or is
unable to meet because of a:rmed attack on the United States. Any time that United
States armed forces are engaged in external hostilities without a declaration of war,
Congress can direct their removal by concurrent resolution. The Resolution states
that it gives the President no powers he did not ha..e before; nor is it "intended to
alter the constitutional authority of the CongTess or of the President or the
provisions of existing treaties." For Professor Charles Black's views of the Resolution
as "a series of puzzHng repugnancies and contradictions." see Black, The Working
Balance of the American Political Departments, I Hastings Const. L.Q. 13, 18 n.21
(1974).
334.90 Slat. 1255,50 U.S.C. 160I, 1621, 1622, 1631, 1641. 1651. For committee
reports see, 3 U.S. Code Congo & Ad. News 2288 el seq. (1976). See also the International Emergency Economic Powers Act. 91 Stat. 1626 (19i7), 50 U.S.C_ 1701-1706
and committee reports in 3 U.S. Code Congo & Ad_ News 4540 et seq. (1977).
335. S. Rep. No. 94116B, 94lh Cong., 2d Sess. I (1976). Provisions of law conferring emergency powers were to be effective (1) only when the President speCifically
declared a national emergency, and (2) only in accordance with the Act. In declaring
an emergency he must specify the legal provisions under which he or other officers
will act There are prm-isions for termination of emergencies; for presidential and
executj\'e agency maintenance of a file and index of emergency Orders and regulations and transmittal of such Orders and regulations to CongTess; for presidential
reports to Congress of expenditures attributable to the emergency; and for repeal
or continuation of various emergency and other statutory provisions.
336. For a good general treatment of the subject see Fisher, The ConstilUtion
Between Friends - Congress, The President and the Law (1978).
337. Thus, for instance, the ability of Congress to intrude on the executjve is
enhanced by court interpretation of the Constitution's "speech and debate clause"
(Art. I, 6, declaring with respect to members of Congress that "for any speech or
debate in either House. they shall not be questioned in any other place"). In 1971
Senator Gra,;el of Alaska at a public meeting of his Senate Subcornmillee on
Buildings and Grounds read extensively from the goyernrnent's confidential "Pentagon Papers" on the Vietnam War and made all 47 volumes part of the public

108

I.

c.

Some General Observations on Law and the Legal System

Legislature and Administrative Agencies

This topic encompasses two major areas I wish to explore: (I) One
is the pronounced trend in recent years towards legislative cutting
down of the administrative bureaucracy. through "deregulation" or
through the process of "oversight"' of administrative agencies and their
rules and regulations. including the use of a "Iegislative veto." (2) The
other is the further cluster of "separation of powers" issues that arise
over the legislative creation of an agency that not only "administers"
or "executes" but also has powers partly judicial and partly legislative.
(I)

Deregnlation; "Oversight" (Including the

Legislative Veto)

I. The movement supporting drastic legislative curtailment of

government regnlation in favor of the relatively free operation of the
market has strongly accelerated in the last several years because of the
belief that regnlation has "failed." The deregnlation approach already
taken. in varying degrees. in such areas as airlines. trucking. and securi
ties brokers' commissions is urged for much broader application. Others
are more cautious. arguing that deregnlation is much less defensible
in some regnlatory areas than in others. 33s At the stan of the Reagan
administration. it appeared that deregulation would be given high
priority.
2. Perhaps an equally high priority was being given to legislative
"oversight" of administrative agencies. As in the case of deregulation.
the initial big push had come in the latter Carter years. In 1980 the
Paperwork Reduction Act set up an agency within OMB to reduce the
amount of information collection by government agencies and make

record. Also, his aide negotiated with Beacon Press for publication of lht' documents
in book form. In Gravel,', U.S .. 409 U.S. 606 (19i~) the Court ruled that [he speech
and debate clause extended only' to "legislali\"(,' acts," and hence would protect the
Senalor and his aide from grand JUTy questioning about e\'enls at the 5ubcomminee
meeting. but would nOI prolect Ihem from questioning concerning arrangements (or
pri\'3te publication of the papers. 1\or was there in the laller type of inquiry any
general "Iegislarh'e immunit),,, stemming from a nonconstitutional source. The
COUf[ cautioned thar the speech or debate clause "does not privilege either Senator
or aide to violate an otherwise \'alid criminal la\\' in preparing for or implementing
legislative acts." On the latter point, see U.S. \'. Brewster, 408 U.S. 501 (1972).
338. For 3 sampling of the growing literamre on deregulation, see S)mposium,
Managing the Transition to Deregulation. 44 Law & Contemp. Prob. 1 (1981);
Gellhorn. Deregulation: Delight or Delusion: 24 Sl. Louis V.L.]. 469 (1980): ABA
Commission on Law and the Economy, Federal Regulation: Roads to Reform
(1979); Breyer & Stewart. Administrative La\\' and Regul3lory Policy 135-1~8 (1979):
Breyer, Analyzing Regulatory Failure: Mismatches, Less ReSlrictin:' Altcrnalj,'es. and
Reform. 92 Han. L. Re\". 549 (1979); CoJ]oquium" The Deregulation of Industry. 51
Ind. L.J. 682 (1976); Stewart, The Reformation of Adminislratiye L:m", 88 Hap".
L. Re\". 1667. 16891693 (19;5).

D.

Agencies and Techniques of Law

109

the process more efficient.". In the same year the Regulatory Flexibil
ity Act, primarily pushed by small business, stated as its purpose that
agencies should "fit regulatory and informational requirements to the
scale of the businesses, organizations and governmental jurisdictions
subject to regulation." Agencies when giving notice of a proposed rule
were to submit an "initial regulatory flexibility analysis," giving the
rule's objectives; its impact on small entities; identification of all fed
eral rules which may duplicate, overlap, or conflict; and description of
"significant alternatives" to the rule that minimize any.significant impact of the rule on small entities. The final rule was to be accompanied
by a "final regulatory flexibility analysis" showing agency reactions to
comments on the initial analysis and why any significant alternatives
were rejected." o Moreover, by approximately July I, 1981, each agency
was to publish in the Federal Register a plan for periodic review of
agency rules having significant impact on a substantial number of small
entities - in order to determine whether rules should be changed or
rescinded in order to minimize the impact on small entities.' U
"Sunset" legislation which, we have seen, has been popular in the
states, has been promoted on the federal level, but thus far not success
fully since the financial and administrative problem for Congress is far
greater than for the states. The major federal sunset bill, introduced
in 1977, had mandated congressional committee review of most government programs every ten years as a condition to possible renewal. But
the substitute agreed on by the Rules Committee in September, 1980
would not require the review of any programs; the committees would
choose which, if any, programs would be reviewed, subject to approval
by the appropriate House. This easing of review requirements was a
result of the awareness of the members of Congress of the potentially
enormous workload for committees, as well as the disruption, delay,
or paralysis of agency programs that would result unless sunset reviews
were undertaken at a measured pace.S<'
339. 94 Sial. 281~ (1980), 44 U.S.C. 3501.3520. See commillee reporls in 5 U.S.
Code Congo &: Ad. News 6241 et seq.
340. 94 Sial. 1164 (1980). It adds chap. 6 (60161~) 10 Tille 5, U.S. Code. For
committee repoTlS see, 4 U.S. Code Cong. &: Ad. News 2788 el seq. (1980). The
requirements as to flexibility analysis are inapplicable if the agency head certifies in
the Federal Register that the rule will not have a significant economic impact on
small entities, succinctly explains the reasons, and also provides such certification
and explanation to the Chief Counsel for Advocacy, Small Business Administration.
341. There are further prOVisions concerning the agency's review of its rules;
concerning restriction of judicial revie\\'; and concerning the power of the Chief
Counsel for Advocacy, Small Business Administration, to monitor compliance with
this law by the agency and to appear in court to present views on the effect of a
rule on small entities, in any federal suit to review a rule. The said Chief Counsel
discusses the Act in Stewart, The New Regulatory Flexibility Act, 67 A.B.A.]. 66
(1981).
34~. See Congo Q., Sept. 6, 1980, at 2645. The ABA Commission on Law and the
Economy had recommended that Congress delegate to the President the authorit), to

llO

I.

Some General Observations on Law and tbe Legal System

3. Carter, who had backed a broad sunset bill, had also backed the
core of a measure or measures that (a) would have required agencies to
execute a "regulatory analysis" for any proposed major rule - i.e., a
preliminary analysis discussing the need, the alternatives, and the po
tential consequences, and a final analysis (after allowing time for public
comment and debate); (b) would have required periodic review of rules
and programs, and a biannual "'regulatory agenda" from the agencies,
outlining the major rules contemplated for the coming year; and
(c) would have provided more public funds to encourage public par
ticipation in agency proceedings. Three other provisions proved so
controversial that passage of the whole program was prevented;"" a
similar program described earlier, however, which Carter had estab
lished by Executive Order, continued until revoked by the Reagan
Executive Order previously discussed. 3 "
4. Often overlooked in discussion of legislative oversight of the
agencies is the authority of Congress's watchdog, the General Accounting Office, headed by the Comptroller General. Concerned not only
with seeing that public funds are not spent for unauthorized purposes,
he is also specifically authorized by Section 204(a) of the Legislative
Reorganization Act as amended in 1974 to "'review and evaluate the
designate which agencies or regulatory functions were to be re\'iewed. A good
example of negative sentiment on federal sunset is the follo\\"ing from a 1976
Brookings Institution study called "Are Government Organizations Immortal"':
"Imagine the paralysis, the sense of suspended animation that would overtake
agencies. their clients. and their beneficiaries as expiration dales approached. Think
of trying to do business and plan for the future under such conditions. \'isualize rhe
dilatory tactics of interests that, having lost an immediate battle over federal inter
vention, strove to delay implementation until the automatic reopening of the
struggle rolled around. And finally consider the crush and confusion of legislatures
as they tried in each session both to dispose of current business and to renegotiate
the accumulating body of prior settlements. Time limits would soon be abandoned
or ignored. Organizations would be routinely and uncritically renewed. Things
would soon revert to their present state."
For some discussion of sunset legislation see Price, Sunset Legislation in the
Uniled Stales. 30 BayloT L. Re\,. 401 (1978): Note. 11 U. Mich. J.L. Ref. 269 (1978):
Vidas. The Sun Also Sets: A Model For Sunset Implementation. 26 Am. U.L Rev.
1169 (1977).
343. First was the "Bumpers amendment" that would haye given greater scope
to court review of regulations by removing the presumption of ...alidily that has
attached to regulations; see O'Reilly, Deference Makes A Difference: A Stud)" of
Impacts of the Bumpers judicial Review Amendment, 49 U. Cin. L. Re\". 739 (1980);
second was a pro\'ision for a "Iegislath'e veto" of regulations by vote of one House
(later weakened by requirjn~ a vote of both Houses, with power in the President to
velo the congressional veto); and third was a provision that the rulemaking process
be of a "hybrid" form, so that instead of the legislative-type hearing in which com
menls (written, and nOl always oral) on proposed rules are received. interested parties
would have not only the right of oral presentalion but also. in certain circumstances,
the right of cross-examination of other panicip:lOtS. See Congo Q., Dec. 13, 1980.
aL 3576.
344. See discussion of both Orders under D6a above.

D. Agencies and Techniques of Law

III

results of government programs and activities" when "ordered" by

either House or "requested" by any congressional committee or "upon
his own initiative." "This kind of reviewing and evaluating had in fact
long been done by the Comptroller's staff, which since 1970 has in
c1uded an Office of Program Review and Evaluation as a formally
recognized entity."'"
5. I come next to the "legislative veto" as applied to administrative regulations. An example would be Congress's insertion into a
statute of a provision to the effect that an administrative regulation
adopted under the statute can be vetoed by one House within 60 days
of promulgation. (Less often, the veto is to be by both Houses, or by
a legislative committee of one House).
The device seems to have been born in 1932 when Congress authorized President Hoover to consolidate existing administrative agencies
and activities - any of his reorganization plans to be subject to a veto
by a single House of Congress. That scheme for presidential reorganization plans has been continued ever since, having been used in hundreds
of laws to allow legislative negation of action taken by administrative
agencies (or executive departments)." Congress has even seriously considered bills to amend the Administrative Procedure Act so as to extend
the system to all administrative rules." 7 Every President has opposed
the veto, whether taken against his own action or against that of an
executive or administrative agency. President Reagan, however, will
presumably follow the 1980 Republican platform, which endorsed the
veto.
Constitutional validity of the scheme is sharply debated. There
are able critics". as well as supporters 34 ' of the validity of one form
345. Gellhorn el aI., supra n.211 al 103 n.l. See Brown, The GAO, Untapped
Source of Congressional Power (1970).
346. For examples of recent use of the device in prominent stalU[es on subjects
like education, energy. and airline deregulation, see Cohen, Legislative VelD Baltle
Escalates-Should Congress Have the Last Word? Natl. L.J., Sept. 6,1980, at 1476
1477. Recently a cognate weapon has been Used: Congress, under Carter. had been
attaching riders to appTOprialion bills to prohibit agendes from spending money to
effectuate a particular regulation - e.g .. an IRS regu1alion eliminating the tax
exempt status of private and religious schools that fail to meet affirmative action
requirements. ld. at 1474.
347. Bruff & GeBhorn. Congressional Control of Administrative Regulation: A
Study of Legislath'e Veloes, 90 Han'. L. Rev. 1369, 1370 n.4 (1977).
M8. See e.g .. Dixon. The Congressional Veto and Separation of Powers, 56
N.C.L. Re\,. 423 (1978); Bruff & Ge1Jhorn. supra n.347; Administrative ConCcrencf"
of U.S. Recommendations 77-1, 1 C.F.R. 305.771 (1977); Address of Assist3nt At
torney General Scalia. Symposium on "Oversight and Review of Agency Decision
making," 28 Ad. L. Re\". 577, 684698. 700701 (1976); ~ole, 1976 Duke L.J. 285;
Barber, The Constitution and the Delegation of Congressional Power 11.2117 (1975);
Watson, Congress Steps Out: A Look At Congressional Control of the Executh'e,
63 Calif. L. Rev. 926 (1975).
349. See, e.g.. Nathanson, Separation of Powers and Administrati\"(> Law: Delegation, The Legislative Veto. and the Independent Agencies. 75 N\\". L. Rev. 1064.

112

I.

Some General Observations on Law and the Legal System

or another of the scheme. Witl:IOUt attempting to probe deeply into

the arguments, perhaps I can summarize the major criticisms by saying
that the critics perceive (a) a legislative usurpation of executive power
to carry out the laws through regulations; (b) an invalid delegation of
legislative power from Congress to one House or to a legislative com
mittee, there being no explicit standards to guide the discretion of the
delegate; (c) a legislative bypass of the constitutional veto power of
the Chief Executive (one House or a committee is said to be legislat
ing, in preventing a regulation from having the force of law; legislation
to be effective must meet the approval of the President or be passed
over his veto; where the legislative veto provision requires concurrence
of both Houses, a specific constitutional provision seems to require,
for at least some resolutions, a presentation to the President, and
perhaps a fortiori should apply to an important resolution in which
only one House has concurred);3'o and (d) an exercise of "judicial"
power by a House or committee, to the extent that it is engaging in
statutory interpretation to hold that the regulation is not within the
intent of the agency's statute.
The response is: (a) Congress is not exercising executive or judi
cial power, nor is it even legislating, by the veto: In the statute
authorizing the agency to make rules, Congress could have delegated
this power to the agency with no strings attached; it chose instead to
make a lesser or conditional delegation to the agency by reserving the
power to act within a fixed period to invalidate the rules in a particu.
lar way. When it so acts, it is merely effectuating the specified condition. 3" (b) The delegation from Congress to a part of itself (one House
lOi81092 (1981); Schwartz, The Legislative Veto and the Constitution - ARe
examination. 46 Geo. \\'ash. L. Re'\". 351 (J9iB); J:n'its & Klein, Congressional Oversight and the Legislative Veto: A Constitutional Analysis. 52 N.Y.U.L. Re\". 455
(19i7); Miller &- Knapp. The CongTessional \'eto: Preserving the Constitutional
Framework, 52 Ind. L.J. ~7 (1977); Stewart, Constitutionality of the Legislath'e
\"eto. 13 HaT", J. J...egis. 593 (1976). Among other general discussions, see hanhoe.
Congressional Oversight of Adminislrati\'e Disrretion: Defining the Proper Role of
the Legislative "elo, 26 Am. L. Re\'. 1018 (l9i;): McGowan, Congress, COUTI, and.
Control of Delegated Power, 77 Colum. L. RO'. 1119 (1977).
350. Article I, 7 proyide-s for presentation to the President not only of "bills"
approved by both House-s, but also of e\'er)' "order. resolution or '\'ole to '\\'hich [he
concurrence of the Senate and [he House may be necessary." This has been
constTUC'd by the Department of Justice as applicable to "all final Congressional
action of public effect." including "all Congres.sional attempts to e\'ade thl' Presi
de-nr's veto power" - as distinguished from the many other concurrent and simple
resolutions that by long accepted congressional practice han' not been presented to
the President. See Letter of Attorney Gener:ll Ci\'j]eui, quoted in Nathanson, Jupra
n.349 at 1079.
351. The Supremf' Court has already ruled that it is nOI an inY::J.1itl deleg::J.tion
of legislatiVe" po ..... er (or Congress to make the effectiveness of certain SecretaT)' of
Agriculture marketing regulations depend on prior referendum appro\'a1 or t\\'o
thirds of thC' farmers afkcled - i,e" by prj\'::J.te groups rather than CongJ('ss or a

D. Agencies and Techniques of Law

113

or a committee) is said to be as permissible as the delegation of legislative power to the executive or administrative agency in the basic
regulatory provisions of the statute; the courts are liberal today in the
matter of "standards:' (See p. 119 below.) (c) The President's veto power
on legislation is not by.passed. As explained above, this is not a case
of legislation. Moreover. the President did approve the original law
specifying the condition.
No Supreme Court decision has thus far resolved the constitutional
issue.
Aside from the constitutional objections, critics have pointed to a
number of practical difficulties. One is the delay of administrative
action - which can stretch out far beyond the specified 60 or 90 days
when a House disapproves the proposed rule and the agency then revises and negotiates and revises again. Congressional disapproval might
be of only part of a rule or program: How would that affect other
related rules; and when would the agency's subsequent, modified rule
be so similar to the disapproved rule as to come within its ban? The
veto enormously expands the workload for Congress (perhaps mainly
for its stall). Unlike an administrative rule, which is issued with the
Administrative Procedure Act safeguards assuring opportunity for full
input into the decision through hearings. the decision by one House
or a committee has no such safeguards; it would be a "low visibility"
decision in which intensive lobbying or log-rolling may be more determinative than merit. There may be other, unintended impacts on
administrative agencies and administrative law. s5 '
6. Still other important techniques of congressional oversight
should be catalogued here briefly. Congress. as we know, has a role in
appointments to agencies. Substantive policy may be affected through
the control of Congress over the size of appropriations - for the agenpart of Congress. Currin v. Wal1ace, 306 U.S. I (1939); U.S. ", Rock Ro)'al Co-op,
30i U.S. 533 (1939). The Court said in Currin thal there was no delegation. "Here
it is Congress that exercises its legislative authority in making the regulation
[through the Secretary] and in prescribing the conditions of its application. The
required fa\'orable ,'ote upon the referendum is one of these conditions." (at 16).
352. The prestige of an agency as a responsible, aUlOnomous body rna)" be
diminished, and recruiting capable people may be more difficult. Agencies may be
induced to rely less on rulemaking than on adjudication to announce rather new
policies - which contrasts with Wh'H is generally thought to be a salutary oppnsite
trend in agency practice. Judicial re,riew of regulations' may become narrower:
A courl may conclude that failure of a house or comminee to disapprove within
the specified period signifies that the regulation had been ratified as being statutorily
authorized {see Fredericks ". Kreps, 578 F.2d 555, 563 (5th Cir. 19i8). For examples
of some of the practical difficulties mentioned in the texl above, see Bruff &:
Gellhorn, supra n.347.
Critics have suggested alternatives to the velO: Bliss, supra n.298 at 64465 J;
Kaiser, Congressional Action to Overturn Agency Rules: Alternatives to the "Legisla
tive Velo," 32 Ad. L. Rc\". 66i (1980).

I14

1. Some General Observations on Law and the Legal System

cys work generally, or for particular programs. Quite apart from its
enactment of sunset provisions, Congress may put a short expiration
date on a statute, e.g., a year, so that hearings can be held annually on
whether agency policies are to be approved through reenactment. Still
other channels by which Congress keeps informed about what is happening in the agencies include: committee investigations; a statutory
requirement of regular agency reports; committee hearings on appropriations and other matters within the committees jurisdiction; the
required publication in the Federal Register of agency rules and regulations; and a watchdog committee that might be established over all
the operations of a particular agency (a state may have a committee
for watching all agency rules and regulations). Moreover, the existence
in both Houses of the standing ("subject matter") committees, appropriations committees, and committees on government operations means
that each agency has at least six committees - plus subcommitteeswhich, while perhaps not watchdog committees, are capable of keeping
in close contact with, and influencing, the agency's operations.'"
Whether or not they are on such committees, members of Congress
(acting usually in behalf of constituents) are known to intercede with
and put pressure on the agencies.'" All this accountability, however,
does not necessarily result in efficient "oversight." Senator Ribicoff in
1976 lamented the "fragmentation' of responsibility and the "chronic
absence of coordination and cooperation between committees'- The
"standing committees do not coordinate their oversight with either
the Government Operations Committees or the Appropriations Committees on a systematic basis."'55
7. Finally, you should realize that there is more than just "oversight" in the interaction between legislature and agency. Agencies
may develop a close relation of mutual assistance with particular legis
lative committees or members. This includes - in spite of the funneling of agency legislative requests through the Office of Management
and Budget - direct legislativeagency contacts over content and drafting of proposed legislation. Scholars have observed that "the norms of
legislative committees often differ from those of appropriations [committees]; the former often attempt to expand an agencys jurisdiction
and view an agency as a partner rather than an adversary, whereas in
353. See GeJIhorn et aI., supra n.21 I at 108.
354. ld. at 112-114. Recall the "due process" and Administrative Procedure Act

barriers to "ex parte" contacts in formal proceedings. See supra n.302. And see
GeHond, Judicial Limitation of Congressional Influence on Administrath"e Agencies,
73 N ...... U.L. Rev. 931 (1978); Parnell. Congressional Interference in Agency Enforce-

ment: The IRS Experience, 89 Yale

L.J. 1360 (1980).

355. Ribicoff. Congressional O"ersighl and Regulatory Reform. 28 Ad. L Re\,.

4-15. 420 (1976). Generally on this paragraph. see Gellhorn et al.. supra n.211. a[

103-116.

D. Agencies and Techniques of Law

115

the appropriations committees, norms of restraint and scarcity usually

dominate. Through the dual subsystems, the tension (often hostility)
within Congress between legislative and appropriations committees is
transmitted to the agencies, whose stance visavis their legislative
master is thereby made more complex and diflicult."356
(2)

Agency Functions and "Separation of Powers" Issues

Nor should we forget that the legislature plays a vital role before
there is any administrative agency to "oversee." That is, it is the legis.
lature that brings the administrative agency into being, by a statute
describing (among other things) its composition, functions, and powers.
It is the legislature that determines whether the agency is to hold
hearings and exercise the judicial power to adjudicate disputes,
whether it is to have the power to issue rules and regulations with the
force of law, make investigations and inspections, issue subpoenas, and
bring enforcement suits in court.
Among the questions thus raised, I wish briefly to discuss four
separation of powers issues.
(a) When an agency is vested with judicial power, can it be ob
jected that the legislature has transgressed the constitutional separation
of powers by giving an agency what the constitution contemplates for
courts? Generally, the answer nowadays is no. To sustain this objection,
said the Supreme Court in 1940, "would be to turn back the clock on
at least i half century of administrative law."357 The reasons that administrative law has developed in this direction are probably (I) the
courts are aware of the impossible burden that would be placed on the
courts themselves if the agencies could not help in shouldering the ad
judicative burden (recall the statistics in my earlier discussion of the
functioning of administrative agencies); (2) the courts are aware that
the typical agency adjudication is not the final word - it is subject to
court review. Still, there are a few maverick decisions in state courts
finding, some decades ago, that agency adjudication violates the separation of powers principle under the state constitution. s5
(b) Even if exercise of a judicial function by a noncourt is permissible, does it not become impermissible when the legislature allows
356. Dodd & Schott. supra n.233 at 225.
357. Sunshine Anthracite Coal Co. v. Adkins. 310 U.S. 381 (1940). See also
NLRB v. Jones & Laughlin Steel Corp .. 301 U.S. 1 (1937): Union Bridge Co. v. U.S ..
204 U.S. 3&1 (1907); Brown, Administrative Commissions and the Judicial Power. 19
Minn. L. Re,. 261 (1935).
358. A New Mexico court so held in 1957 with respect to the Workmen's
Compensation Commission (Slale v. Mechem, 63 N.M. 250, 3]6 P.2:d 1069 (195i, and
a New Hampshire court so held Wilh respect to a proposed administrative' agency
system fOT adjudicating auto accident cases (In re Opinion of the Justices. 87 N.H.
492. 179 A. 344 (1933.

116

1.

Some General Observations on Law and the Legal System

this function to be joined in the same body with prosecutonal and

other executive as well as legislative functions? Has not the integrity
of the adjudicative process been impaired? A 1972 empirical study
suggests, on the basis of a limited sample, a negative answer ." Nor,
as we shall see, have courts ruled against the joinder as such. The
Administrative Procedure Act aims at internal separation of functions
within an agency, including independence of the hearing officers (now
called administrative law judges or ALJs).60 The Merit Systems Pro
tection Board rather than the agency has the power over the AL.Js'
appointment and removal, and determines their salaries "independently of agency recommendations or ratings."61 Performing no tasks
"inconsistent with their duties and responsibilities as hearing examiners," no ALJ may "be responsible to or subject to the supervision and
direction of" any officer "engaged in the performance of investigative
or prosecuting functions for any agency"; and generally those participating in investigation or prosecution of an administratively ad judicated case are not to "participate or advise on the decision" of that
case or a factually related case. S60
True, the Act makes these latter provisions specifically inapplicable to the heads of agencies - who make the final adjudication. But
a leading textbook points out that agency heads are rarely concerned
with the details of cases at preliminary stages in a way that could
accurately be characterized as investigative or prosecutive. In general,
"federal courts have been scantily impressed by lawyers' outcries against
the combination of responsibilities to be found in large administrative
bodies."6' At any rate, even in the case of a small agency - a medical
board - the Supreme Court in 1975 held that the due process clause
359. See Posner. The Behavior of Administrath'e Agencies, 1 J. Legal Stud. 305,
323344 (1972).
360. A 1978 statute enhanced the prestige of hearing officers or examiners by
classifying them (as had a previous regulation) as adminislrarjYe law judges; it also
designated approximately one-third of lhe 1.000 or so positions as emilled to pay
comparable to certain senior go\'ernmenl executives' salaries. Gellhorn el aJ., supra
n.211 at 754 n.9.
361. The agency presently selects ALJs from among the three highest rated
candidates in the lists pro\'ided by the Office of Personnel Managemenl. Experience
in the agency's field (e.g., by being a former employee of the agency) is an element
of qualification and not deemed to imroduce an impermissible element of bias. [d.
at 760-762. Some concern has been expressed over "whether sufficient controls over
the quality and producti\'ity of [he ALJ performance has been retained." [d. at 755.
362. For the most pertinent pro\'isions of the Act, see 5 U.S.C. 554(d), 556, 559.
3105. Particular staLUtes may effect a still more drastic internal separation of
adjudication from policymaking. Thus the 1947 Taft-Hartley Act S3W to it that the
adjudicative and prosecutorial staffs handling labor-relations cases were not re\,ie\\'ed
by the same administrative entity. The General Counsel of the l':.Hional Labor
Relations Board has final authority O\'er invesligalOry and proseculOrial policies. He
is not controllt'd by the Board, \\'hich has final authority over adjudicJtion.
363. Ge1Jhorn et aI., supra n.211 at 859.

D. Agencies and Techniques of Law

II7

would not prevent the joinder of investigation with adjudication. The

board could adjudicate charges aimed at suspension of a physician
even though the same board, after investigation, had brought the
charges. The Court did differentiate those cases in which there might
be a basis for suspecting that the board had been prejudiced by its
investigation and could not adjudicate fairly on the basis of the evi
dence at the hearing; but no foundation for such a view had been
presented in this case.3 . '
(c) Even though constitutionality of joinder of functions be con
ceded. many have urged the desirability of safeguarding the integrity
of adjudication and strengthening the process of policymaking by
separating these two functions - i.e., removing the adjudicative func
tions from quasijudicial agencies and transferring them to the regular
courts, or to new specialized courts like a trade regulation court, a tax
court. or a labor court.
Why have such proposals so far been unsuccessful? To begin with.
a significant amount of separation of functions within the agency
exists. as described above, though the agency heads generally have the
last word on adjudications as well as the supervision of the non
~64. Withrow v. Larkin. 421 U.S. 35 (1975). The Court observed that a criminal
courl judge is nol disqualified from presiding at trial by the fact that he earlier
issued an arrest warrant on probable cause for the defendant, or decided at a
preliminary hearing that there was probable cause to hold him for trial; that a civil
judge is not "disqualified from presiding over injunction proceedings because he has
initially assessed the facts in issuing or denying a temporary restraining order or a
preliminary injunction"; and that the Court had recently sustained against due
process objection a non-adversary procedure in which "a Social Security examiner
has responsibility for developing the facts and making a decision as to disability
claims."
The Lo.rkin case was relied on in the following year when the Court held that
a school board's decision to fire teachers striking in violation of state law (and who
had objected to the board's proposed disciplinary hearings, questioning the board's
objectivity) did not violate due process merely because the board had previously
negotialed with the strikers. The prior involvement was "nol enough to o ...ercome
the presumption of honesty and integrity in polkymakers with decisionmaking
power." A decisionmaker js not disqualified by "mere {prior] familiarity Wilh the
facts of a case," or by the fact that "he has taken a position. even in public, on a
poJicy issue related. to the dispute in the absence of a showing that he is not capable
of judging a particular controversy fairly on the basis of its own circumstances."
Hortonville Joint School Dist. Y. Hortonville Educ. Assn., 426 U.S. 482 (1976).
Note that neither of these two constitutional cases involved the federal Administrative Procedure Act and its provision against the investigator'S panicipation
in the decision.' (For criticism of the provision and general discussion of separation
of functions, see Davis. Administrative Law Treatise chap. 18 (2d ed., 1980); see also
Gellhorn e( aI., supm n.211 at 899.907). The lArkin opinion contains this dictum
about the APA: "It is also very lypical for the members of administTalive agencies to
receive the results of investigations, to approve the filing of charges or formal
complaints instituting enforcement proceedings, and then to participate in the
ensuing hearings. This mode of procedure does nOl violate the Administr:lti"e
Procedure Act, and it does nOl violate due process of law." The reference to non
violation of the APA seems to be to the exemption for agency heads (""members").

118

1. Some General Observations on Law and the Legal System

adjudicatory staff. Further, as opponents of complete separation point

out, it is often difficult to distinguish adjudication from policymak.
ing - e.g., the process of licensing or granting of subsidies involves ele
ments of both. More positively, they assert that there are advantages in
amalgamation of the two functions in one body; that experience in
one function helps in discharging the other. When Louis Hector, a
proponent of separation, had argued that planning an air route is an
executive function, but that selecting which carrier should operate it
is a judicial function for a court, Professor Carl Auerbach replied:
"The CAB . . . planned its international air routes pretty much as
Mr. Hector would have wished. But in the subsequent [adjudicative]
proceedings involving the selection of carriers, evidence was introduced to cause it to modify its plans in important respects. The selec
tion of the carrier affects the route to be chosen, and vice versa."65
The argument is roughly this: (i) an agency stripped of its adjudi.
cative functions would be lacking in an important source of information for its executive and legislative functions as above illustrated,
would lack a significant means for the development of policy in areas
that do not lend themselves to control by general rules,'oo and would
not be as able to develop a coordinated policy; and (ii) the proposed
administrative court would lack the knowledge that comes from exercise of executive and legislative functions (including the concomitant
day-to-day contact with the specialized staff and the problems of the
industry). It would therefore be making less-informed policy, for it is
a mistake to assume that adjudication does not involve policy judg.
ments. This is a point you will see more clearly from the discussion in
Chapter 4. While I have summarized the arguments that have thus far
been persuasive, I should add that from time to time a responsible
official announces his views the other way - one of the most recent
being Commissioner Philip Elman, who ended an active two-term
career on the Federal Trade Commission in 1970. Newton l\linow so
spoke in 1963 on leaving the Federal Communications Commission,

365. Auerbach. Some Thoughts on the Hector Memorandum. 1960 'Vis. L. Re\,.
183, 186. See also Auerbach. Should Administrative Agencies Perform Adjudicatory
Functions? 1959 Wis. L. Rev. 95; Cary. Why I Oppose the Divorce of the Judicial
Function From Federal Regulatory Agencies. 51 A.B.A.]. 33 (1965).
!Wi6. The Supreme Court has recognized the wisdom of allowing federal agencies
to assess the relative merits of announcing an innovative principle in an adjudicatory
proceeding as against a rulemaking proceeding, and to make a reasonable choice
between the two procedures. See Gellhorn eL al.. supra 0.211 at 211-248; Shapiro.
The Choice of RuJemaking or Adjudication in the Development of Adminis[f::lti\'e
Policy, 78 Harv. L. Rev. 92 (1965): SEC v. Chenery Corp., 332 U.S. 194 (1947):
NLRB v. Ben Aerospace Co., 416 U.S. 267 (1971).

D. Agencies and Techniques of Law

119

and Louis Hector on leaving the Civil Aeronautics Board in 1959.s67

(d) Insofar as the legislature confers legislative power on the
agency, i.e., power to make rules and regulations with the force of
law, can this be attacked as another violation of the separation of
powers principle; has not the legislature abdicated its own constitu
tional responsibility for exercising the legislative power? Again, speak.
ing generally, the answer is no. True, there have been plenty of cases
in which the courts have asserted that the legislature cannot make a
"delegation" (or an "undue delegation") of its legislative power. But
in the entire history of the Supreme Court to the present, there have
been only two cases in which that Court thought Congress had made
such an invalid delegation to another branch of government - both
of them involving aspects of the National Industrial Recovery Act of
1933.s68 Whatever may be the special factors that explain those decisions that found the statute lacking in sufficient "standards" to guide
the delegate's discretion, the Supreme Court has since upheld numerous statutes no less lacking in standards. The trend in the federal cases
is to look less at statutory standards than at the fairness of the agency
procedures and results.a60 Explanation of the trend probably lies in
the increased judicial awareness that for complex and changing regulatory problems, a legislature simply cannot lay down precise, detailed
standards in advance.
Still, the "nondelegation doctrine," as it is sometimes called, is
not dead. From time to time, two or three dissenting members of the
Court will be found invoking the doctrine, which still enjoys some
scholarly support. 370 Moreover, the doctrine is taken more seriously in
state courts interpreting their state constitutions. a71

367. The HeClor memorandum was published as Problems of the CAB and the
Independent Regulatory Commissions. in 69 Yale L.J. 931 (1960). Minow's position,
originally in the form of a May 31, 1963 letter to President Kennedy. appears in
Suggestions for Impro\,ements of the Administrati,"e Process. 15 Ad. L. Re\". 146
(1963). Elman's position appears in his A Modest Proposal for Radical ReoTDl, 56
A.B.A.J. 1045 (1970). William L. Cary. former SEC chairman. after leaving the SEC
took specific issue with both Minow and HeClor in his article cited in n.365 supra
and in his later book. Politics and the RegulalOry Agencies (1967).
368. Panama Refining Co. v. Ryan. 293 U.S. 388 (1935); Schecter Poultry Corp. v.
U.S .. 295 U.S. 495 (1935).
369. See Davis, supra n.248, chap. 2.
370. See dissents in American Textile Mfrs. Inst. v. Donovan. 69 L. Ed. 2d. 185
(J9131). and in Arizona v. California, 373 U.S. 546 (1963); Barber, The Constitution
and the DeJegation of Legislative Power (1975); Wright Oudge Skelly Wrighl),
Beyond Discretionary Justice, 81 YaJe L.J. 575 (19i2); Lowi, The End of Liberalism
297299 (1969); Merrill, Standards - A Safeguard For the Exercise of Delegated
Power. 47 Neb. L. Re\". 469 (1968).
371. See 1 Coopel', Slate Administrative Law, chap. 3, esp, 7980, 8485, 8790
(1965); GeBhorn et aI., supra n.2l1 at 8183.

120

1. Some General Observations on Law and the Legal System

d.

Court and ExecutiveAdministrative Agencies

Under this heading it might have been appropriate to include

some of the issues discussed above. For in talking about the legislature
in relation to the agencies, I also talked about court reactions - i.e.,
court reactions to legislative vesting of judicial power in the agency,
and legislative joinder of it with executive powers in the same agency;
and court reactions to legislative delegation of legislative power to the
agency.
But my chief concerns under the present topic are three other
questions: First, what are the kinds of questions that courts may properly consider in reviewing the action of administrative agencies?
Second, what is the scope of the court's review? Third, what are some
ways in which courts pay deference to the agency?
Judicial Review of Agencies

(i) The Kinds of Questions That May Be Reviewed

There are some limits on the kinds of questions a reviewing court
can consider. Not all questions qualify as 'judicial." There is a "politi.
cal question" doctrine, for instance, under which a court may conclude
that a particular issue is not "judicial" but "political," to be resolved
by the other branches of government. 372 This doctrine was applied to
the issue of legality of presidential action in the Vietnam War.373
The Supreme Court made clear, a long time ago, that the question
whether a state has a "republican form of government" as required by
the Constitution is a political question. 37 ' The scope of the doctrine
has been diminishing in recent years. But where the President's action
involving other countries is concerned, the handsoff attitude expressed
by the "political question" doctrine is reinforced by a traditional def
372. The doctrine is also discussed in Chap. 2 herein under B6,g&h.
373. In Allee v. Laird, 347 F. Supp. 689 (E.D. Pa. 1972) a threejudge rederal
court dismissed as raising a political question a case attacking constitutionality of
[he Vietnam War. This was summarily affirmed by the Supreme Court in Allee '".
Richardson, 411 U.S. 911 (1973), with dissents by Justices Douglas. Brennan. and
Stewart. Earlier, !'ome other lower courts had applied the doctrine (see. e.g., \'eh'e] Y.
Nixon. 415 F.2d 236 (10th Cir. 1969), c<rl. denied, 396 U.S. 1042 (1970): Lurtig v.
McNamara, 373 F.2d 661 (D.C. Cir. 1967), cerl. denied, 387 U.S. 945 (1967): Holtzman
\'. Schlesinger, 484 F.2d 1307 (2d CiT. 1973). But a contrary ,'ie\\' was taken in
Massachuselts v. Laird, 451 F.2d 26 (1st CiT. 1971); Berk v. Laird, 429 F.2d 30:.! (2d
Cir. 1970): Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971), <crl. denied, 404 U.S. 869
(1971). Also. in a number of cases in which the Supreme Court denied ceniorari
(discretionary) revie ...... there were individual dissenls from the denial. See, e.g .. the
dissents in Da Costa v. Laird, 405 U.S. 979 (1972); Moria ". McNamara, 389 U.S. 934
(1967); Mitchell v. U.S., 386 U.S. 972 (1967).
374. Luther v. Borden, 48 U.S. (7 HOW.) 1 (1849).

D. Agencies and Techniques of Law

121

erence to his broad constitutional power in foreign affairs. 37 Even

here, though, change may be in the wind. In the 1979 summary dis
missal of the suit by several members of Congress challenging President
Carter's termination of the defense treaty with Taiwan without Senate
participation, the Court's attitude on justiciability was far from uni
fied. Supporting dismissal of the suit on the ground that the question
was a nonjusticiable political question was only a plurality of four
Justices. Another concurred in the dismissal, without opinion. Two
others found the issue justiciable. Two more urged that the justiciabil.
ity.issue should have full briefing and argument rather than be disposed
of summarily.376
Another reason for saying a particular question is not a "judicial"
one appropriate for a court's resolution is that it looks like the kind
of executive or administrative question that has in the past been
handled only by executive or administrative agencies. Thus, if a statute
authorizes licensing by an agency, and authorizes a de novo judicial
review - i.e., not limited to questions of law and to determining
whether the agency fact findings were supported by substantial evidence,
but rather covering the entire exercise of administrative discretion on
issuance or revocation of .the license, including an independent deter
mination of fact and law - you rna)' find a court saying the statute
invalidly lodges a "nonjudicial" question in the court. Or you may
find the court saving the constitutionality of the statute by interpreting
it narrowly - in spite of its broad language - to allow only the nor
mal, limited judicial review.';; De novo judicial review of agency
action is rarely authorized - even when a strong element of discretion
ary administrative policy is not involved. But there are special situa
tions in which a court might hold de novo review (in the sense of an
independent determination of fact and law, though not necessarily on
the basis of a new evidentiary trial in court) to be constitutionally
required. 3; '
375. See. e.g.. Chicago &, Southern Airlines v. Waterman S.S. Corp . 333 U.S.
103 (1948).
Another aspect of judicial deference to the executive in the foreign affairs area
is [he so-called "act of state"' doctrine. This doctrine bars inquiry by courls imo the
legality of acts of foreign governments done within their own territories, partly
because (and some justices think solely because) sum adjudication may embarrass
the executive conduct of foreign policy. But a Supreme Court majorit~ in 19i2:
seemed to believe that the doctrine can apply ,even in a case in which the executi\'e
has expressly advised the Court that American fOi'eign policy interests would nOl
be advanced by applying (he doctrine. See First Natl. City Bank v. Banco Nacional
de Cuba. 406 U.S. 759 (1972).
376. Goldwater v. Carter, 444 U.S. 9% (1979).
377. See Davis, supra n.253 at 29.09.
378, See Davis . .supra n.253 at 29.08; Jaffe, Judicial Control of Administrath'e
Action. chap. 16 (1965); Strong, The Persistent Doctrine of Constitutional Fact,
46 N.C.L. Rev. 223 (1968).

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1. Some General Observations on Law and Ibe Legal System

(ii) The Scope of Review

What then are the judicial questions that a court can properly
handle in its review of executive and administrative action, and what
is the nature of that review? One such question is whether the evidence
at a hearing by an executive or administrative agency adequately sup
ports the fact findings of the agency. In answering this question, a court
does not weigh the evidence in the way it would if it were the initial
fact finder, to see whether a preponderance of the evidence supports
the fact findings in question. It asks, rather, whether there is "substantial evidence" to support the findings. 87 ' This question means: Could
a reasonable mind believe such evidence to be enough to support the
findings even though the court (presumably another reasonable mind)
might not, if it were the original fact finder, have believed it to be
enough? The court is thus paying some deference to the agency; it is
not substituting its own independent judgment.
When you shift from a strictly fact question to a question of "law"
or a "mixed question of fact or law," the cases on the scope of court
review of agency determinations are in great confusion. The problem
is easy enough if the agency procedure or decision is alleged to violate
a con'stitutional standard or some clear statutory mandate whose application by the court requires no deference to the agency, because its
expertise, or its face-to-face confrontation with witnesses, is not involved in the matter. On these questions of law, the court substitutes
its own independent judgment.
But suppose the case involves interpretation of the statutory language to determine whether or not the language applies to the facts
of the case. For example, is a newsstand operator who has. according
to agency findings, certain economic relationships with the newspaper
publisher, an "employee" within the meaning of that term as used in
the National Labor Relations Act? This kind of question has sometimes been called a question of law, sometimes a "mixed question of
fact and law." In this type of case you will find some Supreme Court
cases defening to the administrative judgment in the way the Court
does toward fact findings (i.e., saying the agency determination will
be upheld if it has a "rational basis," or "warrant in the record and
a reasonable basis in law"); in other cases the Court has substituted
its own independent judgment on the question.
When it does the former, (a) the Court may nonetheless use its
independent judgment on some aspects of the problem (e.g., on what
was the overall purpose of the statute, what was the common law

379. The leading case is Universal Carner. Corp. v. NLRB. 310 U.S. 474 (1951).
See generally, Davis. Administrative Law Treatise. chap. 29 (1958) and forthcoming
corresponding chapler of second edition; Davis, supra 0.253, chap. 29.

D. Agencies and Techniques of Law

123

meaning of the disputed statutory word);380 or (b) it is likely to be

found asserting the oft-heard proposition that an administrative agen
cy's interpretation of its own statute is entitled to receive great weight
by the reviewing court - especially when the interpretation has been
long-continued and had been, in effect, "ratified" by subsequent legislative appropriations for continued enforcement of the statute and/or
legislative reenactments of it without any change in the interpreted
language.3 S1
When, on the other hand, the Court calls it a question of law it
will usually substitute its independent judgment. But (a) this does not
necessarily mean it will disagree with the agency interpretation; and
(b) the Coun sometimes seems to be saying that there are some ques
tions of law on which the agency is so competent that it is entitled to
deference.
In these cases of applying statutory language to the facts. predicting when the Supreme Court will take the deferential attitude and
when the independent is extremely difficult. The Court has thus far
done a poor job of rationalizing its decisions in this area.3S2
(iii) Forms of Judicial Deference to Agencies
It may be helpful to round up some other ways in which courts
mayor may not pay deference to agencies - i.e., other than in review
of fact findings and other than in the kind of review they sometimes
give to agency applications of statutory language to the facts.
I. Consider first the case of rulemaking. Here the agency is not
conducting a formal (trial-type) hearing to adjudicate whether an unfair labor practice order or cease-and-desist order or monetary penalty
order should be issued against a company. That is the kind of hearing
in which the "substantial evidence" test for fact findings is obviously
pertinent. Instead the agency, let us assume, is exercising its "legislative" rather than "judicial" function; it is conducting a hearing as a
step toward issuance of a regulation with the force of law. Of the
"informal" Or "noticeandcomment" rulemaking type, the hearing is
analogous to a congressional hearing on proposed legislation. Under
the Administrative Procedure Act (5 U.S.c. 706) the major standard
for testing validity of the rule in court is not "substantial evidence,"
but whether the rule is "arbitrary, capricious, an abuse of discretion
or othcrwisc not in accordance with law." This is roughly related to
S80. See NLRB v. Hearst Publications. Inc.. 322 U.S. III (1944); Nathanson.
Administrative Discretion in the Interpretation of St31utes, 3 Vand. L. Rev. 470
(1950).
381. See Davis. supra n.253 at 126133; Annot.. 39 L. Ed. 2d 942 (1975).
382. Davis, Administrative Law Treatise, chap. 30 (1958) and forthcoming
corresponding chapter of second edition; Davis, supra n.253, chap. 30.

124

I. Some General Observations on Law and the Legal System

the 1935 Supreme Court determination383 that there is generally a

"presumption" of validity of an administrative regulation just as there
is of a statute. The effect is a deference to the agency with the burden
of persuasion put on the side of the party attacking the regulation.
But there are complications. One is the fact that as the APA
(553(c)) recognizes, a specific statute governing the agency may require
that a rulemaking hearing should be "on the record"; and if so, the
APA's provisions in Sections 556 and 557 for trialtype hearings (in.
cluding the "substantial evidence" requirement on review, and evidence
and cross-examination as in a court) will apply.
Another complication is this: Instead of saying that the rulemak
ing is to be "on the record," a statute may specify that to be upheld on
judicial review a rule should be supported by "substantial evidence"
on the record as a whole . S< Is the effect equivalent to that of say
ing "on the record"? Or should the agency use the informal notice-and
comment procedure on the assumption that "substantial evidence"
was being used loosely rather than in the sense of trial evidence; that
the agency rule was to be sufficiently supported by the record's informal
comment evidence to avoid being arbitrary or capricious. On this point,
the "law is divided but the view that is tending to prevail" is the latter
view.3 ss Still further complications have arisen from the fact that some
recent statutes for particular agencies have added to the normal notice
and comment rulemaking procedure some attenuated elements of "on
the record" rulemaking, e.g., right of cross-examination, but subject to
certain qualifications.".6
This statutory trend has been accompanied by an effort in Con
gress to enlarge the scope of judicial review of rules - mainl y to re383. Pacific States Box 8< Basket Co. v. White, 296 U.S. 176 (1935).
384. For examples see the Occupational Safety and Health Act of 1970, 84 Stat.
1597,29 U.S.C. 655(1): Consumer Product Safety Act of 1972, 86 Stat. 1218, 15 U.S.C.
2060(c): Federal Trade Commission Impro,ements Act of 1975, 88 Stat. 2195, 15
U.S.C. 57a(e)(3)(A); Toxic Substances Control Act of 1976, 90 Stat. 2040, 15 U.S.C.
2618(c)(I)(B)(i).
385. Davis, Administrative Law Treatise, 6.6 at 465 (2d ed. 1980). Judge Friend
ly's oft-quoled observation in Associated Indus. v. Department or Labor, 487 F.2d
342 (2d Cir. 1973) is that the substantial evidence lest and the arbitrary and
capricious lest "tend to converge." Davis comments: "After all, the heart of both
standards is the requirement of reasonableness or rationality, and that is what
matters. The literal words, 'substantial evidence,' have always been a IOtal misfit
for rules that may properly rest only on interpretation or policy, and the non literal
interpretation of "substantial evidence" has always been synonymous with "reason
able." Davis, id. at 468.
386. Davis. id. at 6.9. FOT example. the Federal Trade Commission Improve.
ments Act of 1974 (15 U.S.C. 57a) allows oTal as well as documentary e\'idence; and
if the agcncy finds it necessary for resolution of disputed issues of material (ac(, an
intcrested person is entitled to submit rebuttal evidence and conduct cross-examination (or have it conducted by the agency) subject to certain agency controls. The
Toxic Substances Control Act of 1976 (15 U.S.C. 2605(c)(3)(A is rather similar.

D. Agencies and Techniques of Law

125

quire the reviewing court to decide legal questions "independently";

to eliminate the long-standing presumption of validity of rules and
the "arbitrary or capricious" standard for review of rules; and to require "substantial support" in the rulemaking file for the factual basis
of the rule_ An early variant of the chief measure to accomplish this
(the "Bumpers amendment") passed the Senate in 1979, but neither it
nor its other variants has yet been successful. s87
Thus the anti-regulatory agency trend we have seen manifested in
efforts at greater control through the President, and through legislative
veto as well as other techniques of congressional oversight, manifests
itself in the drive for greater controls by the third branch of government, the judiciary. The political conservatives who support this latter
movement have also been opposed, however, to "judicial activism,"
arguing for judicial deference to the legislative branch on constitutional issues. The elected legislature is thus being distinguished, as an
object of deference, from the unelected administrative agency.
Another point: If a change is to be made in the way that agencies
q>nduct their rulemaking, could the courts accomplish this without
statutory help? Could they themselves add to the rulemaking requirements set down by the Administrative Procedure Act, e.g., by requiring
stricter rules of evidence or requiring the agency to allow crossexamination (assuming no .provision in the agency's statute for such
additional requirements)? The Supreme Court has said no.S88
2. Suppose the National Labor Relations Board sent a company
a notice that the Board would hold a hearing on a specified date to
determine whether the company had engaged in an unfair labor practice under the Act. The company, claiming that the business of the
plant involved intrastate rather than interstate commerce and there387. See generally. OReilly. Deference Makes A Difference: A Study of Impacts
of the Bumpers Judicial Review Amendment, 49 U. Cin. L. Rev. 739 (1980); Bliss.
supra n.298 at 640643; Woodward &: Levin, In Defense of Deference: Judicial Review
of Agency Action, 31 Ad. L. Rev. 329 (1979). See also on rulemaking generally.
Gellhorn &: Robinson, Rulemaking Due Process: An Inconclusive Dialogue. 48 U. Chi.
L. Rev. 201 (1981); Delong. Informal Rulemaking and the Integration of Law and
Policy. 65 Va. L. Rev. 259 (1979); Pedersen. The Decline of Separation of Functions
in Regulatory Agencies. 64 Va. L. Rev. 991, 1011\020 (1978); Davis, supra n.385.
chaps. 6 &: 7.
388. Section 553 of the APA on rulemaking "established the maximum procedural requirements that Congress was willing to have the murts impose upon
agencies in mnducting rulemaking procedures. Agencies are free to gram additional procedural rights in the exercise of their discretion. but reviewing courts are
generally nOl free to impose them if the agencies have not chosen to grant them.
This is not to say necessa.ri1y that there are no circumstances which would ever
justify a court in overturning agency action because of a failure to employ procedures
beyond those required. by statute. But such circumstances. if they exist, are extremely
rare." Vermont Yankee Nuclear Power Corp. v. National Resources Defense Council,
435 U.S. 519 (1978). See "Vermont Yankee . .. Three Perspectives" (comments by
ProCessors Stewart. Byse. &: Breyer). 91 Harv. L. Rev. 1804 (1978).

I. Some General Observations on Law and the Legal System

126

fore did not come under the Act, went into federal court for an injunc
tion to restrain the Board from holding the hearing. The Supreme
Court has said that a "long.settled rule of judicial administration"
should be applied to this situation, the rule of "exhaustion of administrative remedies." The Board having initiated an administrative proceeding, it was the company's duty to exhaust this remedy before
going to the court. 389 The exhaustion rule has been riddled with
exceptions by some courts - typically where wholly non-factual determinations are involved - but the basic rule does illustrate a court
deference to the agency. The court wishes to gain the benefit of agency
expertise before it concerns itself with the problem.
3. Analogous to the exhaustion rule is that of "primary jurisdiction." Here, unlike the situation in an exhaustion case, no administrative proceeding has been or is about to be commenced. The case has
been brought in court and at least one of the issues is an issue that an
administrative agency has special competence and adequate authority
to handle (and no statute has given exclusive authority to either court
or agency), so the court says the agency should have priority on the
issue. The court either dismisses the suit or retains the case on its
docket to await the agency action.3OO
4. One other illustration of court deference to the agency is the
law applicable to "mandamus." Mandamus is a court remedy, one of
whose uses is to command an official to perform a public duty. The
remedy is qualified, to minimize interference with the functioning of
officials. Thus, courts may say that the remedy is available to command
the exercise of only "ministerial" (nondiscretionary) duties. or to
compel an officer to perform a discretionary duty. but not to compel
him to exercise his discretion in a particular way. True. exceptions
are sometimes recognized where an officia)"s exercise of discretion has
been "arbitrary," and indeed alternative remedies like injunction may
avoid the limits on the mandamus remedy, but mandamus doctrine
does reflect a concern by courts for the prerogatives of a sister agency
of government. 391
e.

Court and Legislature (Relatirms Additional to

Those Shoum in Chapters J and 5)

The sharpest confrontation between court and legislature occurs

when a court strikes down a statute as unconstitutional. This phenom389. Myers \.. Bethlehem Shipbuilding Corp .. 303 U.S. 41 (1938). Sre Davis. Ad
minislrarin Law Treatise, chap. 20 (1958) and forthcoming corresponding chapler
of 2d edition; Davis. supra n.253, chap. 20.
390. Davis. ;d (trealise), chap. 19; Davis. supra n.~53. chap. 19.
391. On mandamus generally. see Da\"is, id. (trealise) ~~3.09; Da\'is. 5upra n.~5:3.
23.06.

D. Agencies and Techniques of Law

127

enon wiIJ not be treated at this point. because it is considered at some

length in Chapter 5. So too. I am postponing until Chapter 3 two other
aspects of courtlegislature relations: the process of court interpretation
of statutes. and the phenomenon of a court resolving a common law
problem (i.e . a nonstatutory problem) in the light of a statutory policy
in a related field. At this point. I want to deal with a number of mis
ceIJaneous other aspects of the coexistence of courts and legislatures.
(I)

Differences of Kind and Degree in the Functioning

of Courts and Legislatures

Consider. first. some salient differences in the functioning of these

two institutions.

What a court can do is rather strictly limited by what the parties

bring to it. In general. the issues considered by the court are only those
raised by the parties. and the facts considered are only those in the
"record" of oral and documentary evidence presented by the parties.
The court's judgment represents not its view of the optimum solution
for all people who find themselves facing the same kind of social problem presented by the case, but primarily whether the particular record
justifies the granting or denial of the particular relief requested by the
particular plaintiff. There are some qualifications to this generalization. including occasions when courts considered issues not raised by
the parties and granted a form of relief not requested. And persons
other than the parties are being listened to when an appellate court
grants permission to, say. the American Civil Liberties Union or the
Association of American Railroads to file a written argument as
"amicus curiae" (friend of the court).'." From that source, moreover
(or. indeed, from the parties' written arguments or from the court's
own investigation or general knowledge). certain facts not in the record
may properly be "judicially noticed" by the court. The doctrine of
judicial notice traditionally has allowed a court to give weight to facts
that are outside the record but so reliable that no proof is needed. The
doctrine has been rather loosely applied in recent years, modifications
are being suggested. and its boundaries are presently unclear.' 9 '
One other feature of a court's functioning should be added: At
the same time that it is attempting to do justice in the particular case,
it is attempting to integrate the case into the body of preexisting principle. This continuing, reasoned elaboration of principle was stressed
~92. See Comment, The Amicus Curiae. 55 Nw. L. Re\,. 469 (1961): Auerbach
et al . supra n.5 at 228231 (1961).
393. See McCormick, Evidence, chap. 35 (2d ed. 1972); Davis, supTa n.385,
chap. 15.

128

1. Some General Observations on Law and the Legal System

by Henry M. Hart as a distinctive virtue of the judicial process in legal

development."
In the respects discussed above, a legislature is more freewheeling
than a court. Though it pays some attention to how its new laws fit in
with existing statutes, it is not focusing on the weaving of a consistent
body of principle. Further, the facts and issues and solutions that the
legislature considers do not depend on what the parties to a particular
dispute put before it. A legislative committee may receive input from
anyone interested in its investigation or in the bill the committee is
considering. Nor is the committee limited by that input; it may sup
plement it by its own staff studies or other material bearing on the
relevant facts, as well as on arguments and possible solutions to the
problems being considered. Compared to the court"s limited options,
the legislature's range of solutions is broad; It may choose from a
variety of different forms of statutes, with different kinds of sanctions,
perhaps with provision for an administrative agency to provide con
tinuous attention to the problems giving rise to the statute. (One thing
the legislature can not do consistently with the Constitution is to enact
a "bill of attainder" - one that singles out persons or groups for
punishment without trial.) '
In general, the legislature is concerned wi th rules for people
generally or for large groups of people, rather than with a dispute
between two antagonists; and it is formulating rules for the future
rather than being concerned with the rights of two parties with respect
to some past happenings. There is a maxim of statutory interpretation
to the effect that a statute is "presumed" to have been intended to
operate prospectively only, unless it deals with a matter of procedure
rather than substance. However, this is only a rebuttable presumption,
and some substantive statutes have been construed as operating retro
actively. As so construed, the statute may be upheld where the court
is convinced that the legislature had good reason to make it retro
active and the backward impact is not unreasonably harsh. 3
To this qualification on the distinction between legislatures and
courts there should be added another; A court decision need not
always address itself to past facts. A comparatively recent development
in judicial practice is this; Where there is announced a new rule,
that either overrules an earlier decision or applies to a situation never
before adjudicated, the court may avoid a possibly harsh retroactive
394. Hart's comments are in Paulsen. ed., Legal Institutions Today and Tomorrow 4648 (1959).
395. See U.S. v. Brown, 381 U.S. 437 (1965); Annat., 4 L. Ed. 2d 2155 (1959).
396. See. e.g.. Nowak et aI., Constitutional Law 428436 (1978); Hochman, The
Supreme CoUrt and the ConsLitUlionalily of Retroactive Legislation, 73 HaT\', L. Re\',
692 (1960); Auerbach et al., supra n.5 at 173. For analysis of the concept of retroactivity. see Munzer, Retroactive La ..... , 6 J. Legal S[Ud. 373 (197i).

D. Agencies and Techniques of Law

129

impact by making the new rule apply only to future cases, or to

future cases and the case being decided but to no others. S07
Under the orthodox approach, the new rule would apply not
only to similar future cases and the case being decided but also to
anyone whose situation arising before the decision was similar to the
situation in the decided case. That individual would, generally speak.
ing, have the benefit or burden of the decision when his situation was
brought to court - assuming that the "statute of limitations," which
puts a limit on the time within which a suit can be brought, had not
.yet expired. If his case had already been decided the other way prior
to the case announcing the new rule, traditionally he would not be
affected by the new rule, because of the principle of "res judicata"
(the matter has been adjudicated). However, in spite of this salutary
policy against the constant relitigation of cases, some exceptions have
developed in this "new law" situation, especially in criminal cases. 3 "
Finally, there is a sense in which statutory law has more of a
planned quality about it - even discounting the fact that pressures
from those who stand to gain or lose from the proposed legislation
make the planning process something less than balanced and disinterested. That is, statutory law is not so dependent on a chance element
which afllicts the system of nonstatutory law - the fact that a court
will not deal with a problem until a genuine controversy between two
parties has happened to occur and been placed by them before the
court.
This chance element in the case law system requires some elaboration. One wonders how a legal system can develop in a socially desirable way when its rules are made ad hoc for particular parties
who happen to have come into the kind of conflict that brought them
to court. Karl Llewellyn once explained the social efficacy of the case
law system by saying that litigation arises out of conflict, and conflict
arises in fields of social activity where growth is taking place - where
the relative strength of interest groups is changing. To which Lon
Fuller responded: Where social change is rapid, case law with its
crowded calendars cannot keep up; the pecuniary interest of an individual may be so slight as to make litigation or appeal impracticable
(citing the abuses that grew up without judicial curb in the field of
weekly premium "industrial life insurance"); and the chance element
may have an unhealthy effect on the direction of legal growth. 3 "
In explanation of the last point: Llewellyn himself had recognized
397. Schaefer, The Control of "Sunbursts"; Techniques of Prospecti"e Overruling, 41 N.V.V.L. Re\'. 631 (1967); Levy, Realist Jurisprudence and Prospeclh'c
Overruling. 109 U. Pa. L. Rev. I (1960); Auerbach et
supra n.5. at 175li8. The
problem is discussed mOTe fully in chapter 4 at nn. 50-61.
398. Sec Auerbach el al.. supra n.5 at ]74175.
399. Fuller. American Legal Realism, 82 U. Pa. L. Re\-, 429. 438-412 (193-1).

.1..

130

I.

Some General Observations on Law and tbe Legal System

that often a whole field of law may be (as paraphrased by Fuller)

"influenced pennanently by the particular tum taken by the first case
arising in the field. This case may have carried a certain factual and
ethical complexion which was actually the determinative element in its
decision. The court in deciding it, however, may lay down a categorical
rule which subsequently becomes divorced from the particular circum
stances of its first utterance, and controls perhaps hundreds of cases
which from an ethical or factual viewpoint are quite different from the
first and 'critical' case." And "organized interest-groups ... may see
to it that these cases 'come up in the right way.' "'00
To this importance of the "first case," Fuller added the importance
of the order in which the later cases come up. There might be an
"accidental absence of a decision which might serve as a doctrinal
bridge between existing rules and needed new law." He cited as an
example the case of Shuey v. United States.'o, in which the Supreme
Court decided that a published offer of a reward could be effectively
revoked by an announcement given equal publicity, even though the
revocation was not then known by the plaintiff, who thereafter expended his efforts to do the things for which the reward was offered.
Prior to this decision, the general rule was that a revocation of an
offer was not effective until communicated. Hence, while Pollock, a
leading British writer on contracts, found the decision reasonable, he
thought it a "strong piece of judicial legislation." Fuller commented:
Suppose that between the earlier cases and the Shuey case, a case
had come up "in which a letter of revocation had been promptl~
delivered at the place of business of the offeree and had been allowed
to remain unopened on his desk. Without much question a court
would have held that such a revocation was 'communicated' so soon
as the offeree had had a fair opportunity to become familiar with it.
And had such a case existed before the Shuey case is it likely that
anyone would have regarded that decision as a 'strong piece of judicial
legislation'? Pollock's attitude was influenced by the purely fortuitous
circumstances that there did not exist a case which could operate to
carry his mind, without shock, from the older cases to the decision in
the Shuey case.''02
(2)

Legal Change: By Court or By Legislature? And

Who Has the Last Word?

The differences already mentioned in the functioning of courts

and legislatures have some bearing on the recurrent question of
400. [d. at 440.

401. 92 U.S. 73 (1875).

402. Fuller, supra n.399

31

441.

D.

Agencies and Techniques of Law

131

whether a reform in the law should be by way of common law or by

statute.
In recent years the issue has been posed sharply by cases in a
number of states dealing with the issue of whether a particular im
munity from tort liability should be abolished. Largely because of the
widespread availability of insurance to potential defendants, we live
in an era of expanding pressures for the proposition that injured
people should be compensated for their injuries. So, long.standing
tort immunities have been under attack, in state after state: immunity
of the municipal and state governments, of hospitals and other chari
table corporations, of parent to child and spouse to spouse.'. 3 One of
the problems raised was whether the court should overrule its prece
dents establishing the immunity or whether it should leave it up to the
legislature to make the reform. Most of the courts facing the issue
have decided to take the plunge themselves - even, in some instances,
when a legislative bill to make the change had died in committee or
had been voted down by the legislature. A legislature that failed to
act, or that acted negatively, was viewed by these courts as wanting to
leave it up to the courts to retain or modify their own judgemade
doctrines, rather than as wanting the courts to retain those doctrines.'"
The choice that a court makes between judicial reform and possible legislative reform requires an assessment of the competing virtues
of courts and legislatures for the job. As I have already suggested, the
legisla ture typically has an advantage in broader access to relevant
facts, broader representation of interests, and broader range of solutions. This was why Justice Brandeis dissented in a well-known case
that recognized for the first time a kind of property right in the news.
The International News Service had been copying, and distributing
as its own, news items that had appeared in early editions of newspapers affiliated with the Associated Press or in publicly posted AP
news bulletins. The Supreme Court majority supported AP's claims
and enjoined the INS practices. Justice Brandeis's dissent recognized
that the common law has a "capacity for growth," but thought that in
this case, court "recognition of a new private right may work serious
injury to the general public unless the boundaries of the right are
403. See Prosser. Law of Torts 984-987 (governments). 992996 (chari lies). 859867 (parent.child and husbandwife) (4lh ed. 1971).
401. See. e.g.. Hol)'lZ v. Cily of Milwaukee. 17 Wis. 2d 26. S6-39. 4243. 115
N.W.2d 618. 623625. 6266~7 (1962). and cases c!ted therein. See also Battala v.
Slale. 20 N.Y.2d 237. 176 N.E.2d 729 (1961); Collopy v. Newark Eye & Ear Infirmary.
27 N.]. 29. 141 A.2d 276 (1958). An instance DC the same point of view being laken
by a court to defend its abolition rather than recognition of a common law right of
action is the Washington Supreme Court's abolition in 1980 of the action [or alienation of affections - an abolition thai had been accomplished legislatively in more
than a score of SlaLes. Wym.an v. Wallace, 94 Wash. 2d 99, 615 P.2d 452 (1980).

132

I.

Some General Observations on Law and the Legal Syslem

definitely established and wisely guarded,"' The legislature might wish

to bar injunctions while allowing damages, perhaps in fixed amount; it
might allow remedies only if the AP had assumed the obligation of
supplying news at reasonable rates and without discrimination to all
newspapers applying; it might wish to establish an administrative
agency. "Courts are iII-equipped to make the investigations which
should precede a determination of the limitation which should be set
upon any property right in news, or of the circumstances under which
news ga~hered by a private agency should be deemed affected with the
public .interest. Courts would be powerless to prescribe the detailed
regulations essential to full enjoyment of the rights conferred, or to
introduce the machinery required for enforcement of such regula.
tions.
"405
But note some limitations on the preference for legislative action.
The si tua tion is one in which the legislature, after all, has not acted.
And this may not be the result of a deliberative choice, mindful of the
public interest. Just as the blatant inaction of malaportioned state
legislatures finally led the Supreme Court to change its mind and treat
a constitutional attack on malaportionment as a justiciable contro
versy, some kinds of legislative inaction may induce courts to make
common law reforms that might not otherwise have been made. Legis
lative action, for instance, may be stymied by the fact that the interest
to be benefited by the reform - as in the case of the injured victim of
a tort - is underrepresented before the legislature. It may be an unor
ganized interest, opposed by an organized interest that stands to lose
from the reform. Or the relevant facts may be well enough known to
(or available to) courts, so that legislative superiority in fact gathering
is immaterial. Or no complex, regulatory solution may be neededmerel), a right of action in court.
.
Such factors are pertinent to the court's intelligent choice - along
with other facts about the characteristics and operations of state legislators, which are sometimes cited in order to question whether legislators are better representatives of the public interest than members of
the typical state supreme court.'o.
0-

405. International News Serv. v. Associated Press, 248 U.S. 215. 262-267 (1918).
More recently, an important study. after pointing to some limits on the Jegisl:uin
and administrative process paralleling those on the mUTts, nonetheless finds a substantia] difference in degree. It concludes that on certain issues of social poliCY,
"the judicial process is a poor (onnal for the weighing of altern::ui\'es and the
calculation of costs," the anticipation of primary and secondary "consequences,"
the necessary "oversight" that is associated with a legislath'ely creative adminisl1'''live agency. the exercise of a broad-based, informed insight unconfined by th(' walls
of a particular piece of litigation. See Horowitz. The Courts and Social Policy.
chap. 7 (1977).
406. See Peck. The Role of Courts and Legislatures in the Reform or Tort
Law, 48 Minn_ L. Rev. 265. 270-285 (1963). See also Bodenheimer. Power, Law and

D. Agencies and Techniques of Law

133

Thus, a reasonable approach to the issue of court versus legislature

in law reform seems to be not to favor one or the other for all law
reforms, but to choose one or the other depending on its appropriate.
ness for the particular reform being considered.7
Assuming the court has chosen judicial reform, this does not
mean the legislature is barred from acting on the subject thereafter.
In the tort cases I have mentioned, for instance, there were times when
a legislature struck back by modifying the judicial reform. Thus when
the Supreme Court of Wisconsin overruled its precedents supporting
municipal immunity from tort liability, the legislature passed a statute
making municipalities liable in tort but establishing certain exceptions
and fixing a $25,000 maximum liability.''
So the legislature can have the last word when it comes to modi
fying a common law doctrine. It also has the last word when it modifies
a judicial interpretation of the meaning of a statute. This was true,
for instance, when the Supreme Court's ruling that the Sherman antitrust law applied to insurance transactions across state lines was followed by the McCarran Act renouncing federal antitrust controls and
consenting to state regulation of the insurance industry.'o Where the
Court has the last word is in a ruling that a statute is unconstitutional.
To change that ruling, if the Court cannot be persuaded to change
its mind, the Constitution itself would have to be amended. This
happened, for example, when the Supreme Court's invalidation of the
federal income tax law". was followed by the Sixteenth Amendment,
and invalidation of the federal provision for eighteen-year-olds' voting
in state elections4l1 was followed by the Twenty-sixth Amendment.
However, even on constitutional issues there may be some indirect
and preventive weapons available to the legislature. One is control
over court jurisdiction. Thus, you will recall that Article III of the
Constitution, after specifying the Supreme Court's original jurisdiction, says that in other cases the Supreme Court shall have appellate
jurisdiction "with such exceptions and under such regulations as the
Congress shall make." This congressional control over Supreme Court
Society 107114 (1973), which lists somt' criteria for determining when a coun
should be innovative and when it should leave the change 10 the legislature.
.
407. Peck. supra n.406 at 296312.
408. See Holytz v. City of Milwaukee. 17 Wi,. 2d 26. 115 N.W.2d 618 (1962). and
1963 Wi,. Laws. chap. 198 (Wi,. Stat. 895.43(1969)). See also the legislative response,
in Minnesota. IJlinois, New Jersey, and California, described in Peck, supra n.406 al
287289.
409. See U.S. Y. South-Eastern Underwriters Assn . 322 U.S. 533 (1944). and 59
Stat. 33 (1945). 15 U.S.C. 101I1015 (1958). See al,o Prudentiallns. Co. v. Benjamin.
328 U.S. 408 (1946).
410. Pollock Y. Farmers' Loan 8< Trust Co .. 157 U.S. 429 (1895); rehearing. 158
U.S. 601 (1895).
411. Oregon v. Mitchell. 400 U.S. 112 (1970).

134

I.

Some General Observations on Law and the Legal System

appellate jurisdiction was invoked by Senator Jenner in a bill he

introduced after some Supreme Coun decisions in 1956 and 1957. The
decisions, which he considered too liberal, dealt with the power of
congressional investigating committees, federal and state programs
aimed at subversive activities, and state requirements for admission to
the bar. His bill would have deprived the Supreme Court thereafter
of appellate jurisdiction in these classes of cases.
The precedent that he thought supported the bill was the postCivil War case of Ex parte McCardle." 2 Here Congress, in order to
prevent Supreme Court determination of the constitutionality of certain Reconstruction legislation, had passed a law withdrawing from
the Coun's appellate jurisdiction certain kinds of habeas corpus cases
(of which McCardle's case was one). The case had already been argued
before the Supreme Court and was awaiting decision at the time the
law was adopted. Still, the Supreme Court unanimously decided that
the law had validly deprived it of the authority to decide the case.
In 1980 and 1981 Senator Helms and others, because of this de
cision and Congress's control over jurisdiction of the lower federal
courts, was sponsoring a congressional wi thdrawal of all federal court
jurisdiction over cases relating to validity of prayers in the public
schools, abortion, and busing for school desegregation, thus leaving
the issue up to the 50 state supreme courts.
But at least as far as the Supreme Court is concerned, it is a mistake to suppose that this congressional power over court jurisdiction
is unlimited. In the first place, the Court in the McCardle case had
not sanctioned a major impairment of its power to deal with the issue
in the case. This is because other statutes permitted the Supreme Court
to consider habeas corpus petitions in the exercise of its original juris.
diction, and in the following year it held that it had jurisdiction to
grant habeas corpus in such an original suit, raising the same issue of
constitutionality of the Reconstruction legislation. H3 Secondly, remember that Article III vests in the Supreme Court, and in such inferior
federal courts as Congress may establish, the federal judicial power - a
power that extends to "all cases in law and equity, arising under" the
Constitution, laws, and treaties; and remember further that the very
concept of an effective Supreme Court under our constitutional plan
seems to imply a court power to keep the Congress as well as the
executive and the states within their prescribed powers. These con
siderations plausibly lead to a narrow reading of the power given to
Congress over the Court's appellate jurisdiction. As Professor Henry
412. 74 U.S. (7 Wall.) 505 (1858).
413. Ex parle Yerger, 75 U.S. (8 Wall.) 85 (1869). There was no decision rendered
on the constitutional issue. because Yerger had been released from (he challenged
military custody, thus making the case "moot," i.e., presenting a dead issue.

D. Agencies and Techniques of Law

135

M. Hart has put it. the exceptions that CongTess may make to the
Court's appellate jurisdiction must not be such as would "destroy the
essential role of the Supreme Court in the constitutional plan."414
The Constitution. in other words. is not to be read as authorizing its
own destruction. Thirdly. there is some authority for invalidating
statutes on the gTound that their purpose or motive is to undo or
obstruct. judicial protection of constitutional rights.4I5
Fortifying these arguments are certain practical considerations:
If the lower federal courts or the state courts were left with final
authority on the issues being withdrawn from the Supreme Court's
appellate jurisdiction. a wellnigh intolerable situation arises: incon
sistency among these courts in interpreting the Constitution (with
perhaps some unanimity created by some courts' treating as precedent
the very Supreme Court decision that had led to the congressional with
drawal of jurisdiction). "The federal system," as Professor Herbert
Wechsler has said. "needs federal courts and the judicial institution
needs an organ of supreme authority.""6
Besides congressional regulation of federal court jurisdiction. there
is another weapon that CongTess might try to use - but again, I think,
not a potent one. I refer to congressional control over the size of the
Supreme Court (the Constitution being silent on the number of Jus
tices). The Court originally had six Justices. and at various times had
seven and ten. but has had nine since 1869. President Roosevelt's
famous "court packing" plan of 1937 (call it "court enlargement" if
you would have favored the plan) differed from the earlier legislation
changing the size of the Court because it was more clearly aimed at
overcoming existing attitudes of the Court on constitutional issues.
The reasons initially given were largely in terms of the volume of
work. but these reasons were soon demolished by a letter from Chief
Justice Hughes and Justices Van de Vanter and Brandeis to the chair
man of the Senate Judiciary Committee. The real reasons seemed to
most lawyers - even some New Dealers - to make the proposed legis.
lation violative of the spirit if not the letter of the Constitution. This
apparent breaking with the spirit of constitutional provisions safe
414. Hart. The Power of Congress to Limit the Jurisdiction of Federal Courts.
66 Han'. L. Re\', 1362,136':' (1953). See also Berger, Congress \'. The Supreme Courl
285296 (1969); BaloT. Mishkin. Shapiro &: Wechsler, Federal CoUTts and Federal
S}Slem 360365 (2d ed. 1973).
4J5. For recent discussion of the problem, including limits on McCardle. see
Sager. Foreward: Constitutional Limitations on Congress' Authority to Regulate the
Jurisdiction of the Federal Courts, 94 Harv. L. Rev. 17 (1981). See Taylor, Limiting
Federa.l Jurisdiction: The Unconstitutiona.Jity of Current Legislative Proposals. 65
Jud. 198 (1981): NOlo.:ak et al.. supra n.222 at 41-48. FOT some pro and con discussions
of the recent bills see Symposium. 65 Jud. 177 (1981).
416. Wechsler, The Courts and the ConsLitulion. 65 Colum. L. Re\,. 1001. 100G1007 (1965).

11I6

I.

Some General Observations on Law and the Legal System

guarding judicial independence (life tenure; no diminution of pay

while in office). undoubtedly contributed to the defeat of the bill.417

7.

Techniques: A Summary Outline

In the preceding sections on the functions and functioning of the

various agencies of the law. I have already referred. in an incomplete
way. to the distinctive techniques by which their respective functions
are carried out. Here is a summary roundup of these techniques. us
(a) Techniques associated with the legislature are:
(I) Setting standards of conduct by statute. which may be
accompanied by the fixing of one or more sanctions for
violation - though sometimes the standards are an
nounced without penalty. and sometimes they are reo
quirements in a government contract. or standards of
eligibility for subsidy or other government benefit.
(2) Providing machinery and rules pursuant to which such
standards and sanctions can be set.
(3) Investigating to detennine the need for new or amend
ing legislation.
(4) Taxing and spending, and otherwise providing for distribution of benefits - which may be widely distributed
like public health. education. and highways, or more
narrowly as in the case of welfare payments and subsidies
to particular industries.
(5) Using a civil or criminal "contempt" sanction - using
it itself or referring the case to a prosecutor-where a
legislative function is being wilfully obstructed. as in the
case of a witness unlawfully refusing to answer legislative committee questions_ (The civil contempt sanction
is designed to induce cooperation from the witness; his
decision to cooperate will terminate the sanction.)
(6) Providing machinery and rules pursuant to which people
may make - subject to certain controls - their own
private arrangements for association. self-regulation, and
417. Basic materials in the debate on the plan wil] be found in Hearings on
S. ]392 Before the Senate Comm. on the Judiciary, 75th Cong .. 1st Sess. (1937);
S. Rep. No. 711. 75th Cong., 1st Sess. (1937); Baker, Back to Back: The Duel Between
FDR and the Supreme Courl (1967); Burns, Roose\'elt: The Lion and the Fox 291
315 (1956). See also. on presidential, congressional. and public controls over the
Supreme Coun, Chap. 5 herein at nn. 5262.
418. See generally Summers. The Technique Elemenl in Law, 59 Calif. L.
Re\'. 733 (19il); Cranston, Reform Through Legislation: The Dimension of Legislative Technique, 73 Nw. U.L. Re\". 873 (197~).

D.

Agencies and Techniques of Law

137

dispute-settling (such as rules with respect to making

wills, forming corporations and unions, and entering
into contractual arrangements on commercial and noncommercial matters, including agreements to arbitrate
disputes).
(b) Techniques associated with executive and administrative
agencies are:
(1) Planning and policy making; setting standards of conduct and eligibility as in (a)(l) above - though sanctions
or penalties are not normally prescribed by the agencies.
(The normal pattern is for the legislature to prescribe
the sanctions, with the agency going to court to have
them imposed. But there are some instances, when the
sanction is non-criminal, of legislative authorization for
agency prescription and even for agency imposition.)
(2) Carrying on investigations, inspections, and negotiations,
and making informal decisions - all aimed principally
at administering statutory or agency standards, obtaining
compliance with standards, and obtaining information
relevant to establishment and modification of standards.
Statutes rarely authorize agencies themselves to administer monetary "contempt"' sanctions for noncompliance
with an agency subpoena. The agency typically tries to
get a court order of enforcement, which when violated,
results in a court contempt proceeding.
(3) Using more formal efforts to enforce compliance with
standards of conduct and eligibility, through (in some of
these situations, after administrative hearing) administrative cease-and-desist orders, granting and revocation of
licenses, granting and revocation of subsidies and other
financial benefits, publicizing derelictions, seizing offending articles like adulterated or misbranded food and
drugs, and engagi ng in various criminal enforcement
activities - including surveillance, arrest, search and
seizure, administering prison regulations, and probation
and parole supervision.
(4) Providing procedural rules, interpretations, statements of
agency organization and the like, that will assist people
in dealing with the agency and meeting its requirements.
(c) Techniques associated with courts are:
(I) The ordering of punishment (i.e., imprisonment and/or
fine) and semi-punishment (such as the award of "punitive damages" in addition to compensatory damages in a
noncriminal suit, or civil monetary penalties, or forfei-

138

I.

Some General Observations on Law and the Legal System

tures of goods). Other sanctions are civil and criminal

contempt, to punish or to induce conduct (see (a)(5)
above).
(2) Ordering actual performance of a named obligation
(e.g., the obligation to convey a piece of real estate you
had agreed to convey and now refuse to convey) or re
straining the performance of a named activity (e.g., your
continued selling of certain unregistered securities in
violation of a statute, or an official's continued enforce
ment of a statute).
(3) Ordering compensation for a legal injury. This is typi
cally the wellknown remedy of "damages" to one suffering some legal injury to his personal or property
rights - though sometimes compensation can take the
form of a compelled return of an item of property.
Damage compensation can take various forms, such as
the value of plaintiffs expenditures in labor, goods, or
services that he made in reliance on defendant's promise,
or an amount that would put plaintiff in as good a position as he would have been in if defendant had not committed the wrong against him.
(4) In arriving at its decision, the trial court uses an adversary hearing procedure - which is not used by the legislature nor, for some of their activities, by the agencies.
However, there are also some atypical activities of courts
that may involve no adversary hearings, such as nat
uralizing aliens, establishing court rules of procedure,
establishing and supervising administration of require
ments concerning membership in the bar of the court,
handling uncontested proceedings such as often occur,
e.g., in the field of probate and divorce, and enforcing a
decree by supervising an enterprise or public institution
(see under Dlb(5) in this chapter).