Document Type

Article

Publication Date

2011

Abstract

In considering what to write for this welcome occasion, I was struck by a certain resonance among Paul's scholarship – at least that of which I was first aware, and which I have often used to impress on students the problems of due process analysis – the important post he now holds, and a story our joint mentor, Walter Gellhorn, liked to tell on himself. In the wake of the Supreme Court's paradigm-shifting opinion in Goldberg v. Kelly, with its confident pronouncement of eight procedural elements that, it reasoned, minimal due process must always require of administrative procedures, Paul made a careful study of forty-two different federal programs and the procedures they set for determining with finality (not as a preliminary matter as in Goldberg) the individual claims that might be involved in them. He found a pattern of enormous variety, with no more than three of Goldberg's eight minima provided in the majority of them, and all eight provided by none. Today, it seems inevitable that variety, not generalization the accommodation of procedural elements to the needs of particular federal programs for efficiency, accuracy, and fairness-will be a major theme of Paul's work as Chair of the Administrative Conference.

The Gellhorn story concerned his work as executive director of the committee that would eventually produce the federal Administrative Procedure Act. The monumental study of federal agency procedures he had directed, still regarded by many as the best empirical account of federal agency procedures ever produced, had revealed the enormous variety of approaches different agencies took in implementing their programs, to all of which efficiency, accuracy, and fairness were important. He took from this, and brought to the committee, the conclusion that generalizing about proper procedure (as the committee earnestly wished to do) was a hazardous undertaking. Dean Atcheson, one member, asked him in frustration, "is there not a single general principle that we can identify, that is universally observed, or ought to be observed, in all these programs?" "Well," Gellhorn responded, "perhaps advance public notice of the proceeding." And then he immediately had to demur. In banking regulation, that would be the end of the enterprise.

This all came to mind as I was reading the Supreme Court's decision in Free Enterprise Foundation v. Public Company Accounting Oversight Board on the very last day of its October Term 2009 last June, a decision that seemed to me tom between general principle and Particularity – just as had been an earlier decision that, in some respects, it both repudiated and modeled, Freytag v. Commissioner. Indeed, the same problems live in two earlier cases that are staples of the administrative law and separation of powers repertoire, Myers v. United States and Humphrey's Executor v. United States. The Supreme Court has a long history of reaching sensible results in its assessments of congressional choices about the structures of government, while having the deuce of a time explaining them. It has taken later developments to pick up the pieces. Its decision in Free Enterprise Foundation is only the most recent exhibit in this right-minded but inelegantly reasoned chain of opinions. This seemed a good occasion to reflect on the difficulties of generalization, the importance of attention to detail in this most real of all possible worlds, that Paul's work so well reflects.

Disciplines

Administrative Law | Constitutional Law | Law | President/Executive Department

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