Administrative Common Law in Judicial Review

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