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and general terms. Each side constructed and critiqued a caricature of the other and opposed to the other's vices a romantic conception of its own side's virtues. Critics of administration portrayed it as essentially lawless. Agencies made decisions without announcing in advance what issues were at stake or what the governing rules would be; they found facts without affording any or adequate opportunities for affected interests to challenge the findings; they issued decisions without reasons or explanations; and they sought to insulate these decisions from judicial review. They violated basic principles of separation of powers by using non-judicial process to adjudicate and by combining the functions of prosecutor, investigator, judge, and jury in a single official. The opposite and antidote to administrative arbitrariness and despotism was the rule of law, which could be produced only by ordinary judges in ordinary courts, deciding issues of fact by adversary trials and of law by common law and constitutional principles protecting individual rights to property and liberty. Defenders responded in kind. At its most abstract, their critique of the judicial conception of the 'rule of law' simply extended the realist critique of 'formalism' and 'conceptualism,' of the idea of law as a 'science 3 Report of the Special Committee on Administrative Law, 63 Ann. Rep, Am. Bar Ass'n. 331 (1938). 4 See, e.g., Roscoe Pound, Administrative Law: Its Growth, Procedure and Significance (Pittsburgh: University of Pittsburgh Press, 1942); Roscoe Pound, 'Administrative Law and the Couts, 24 Boston U.L. Rev. 201 (1944). 5 S. 915, H.R 6324, 76th Cong. (1939). 6 Roosevelt appointed his own committee, headed by Dean Acheson, to study administrative procedure. That committee's report was the basis for the Administrative Procedure Act of 1946, which remains, though so layered over by statutory exceptions and judicial glosses as to be almost unrecognizable, the general code of us administrative procedure: c. 324. 60 Stat. 327 (1946) (now 5 U.S.C. § 551ff). HeinOnline -55 U. Toronto L.J. 407 2005 408 UNIVERSITY OF TORONTO LAWJOURNAL of great symmetrical principles,' 7 a gapless system from which all subrules and particular applications might be derived by an autonomous process of logical deduction. Actual systems of substantive law were riddled with gaps, conflicts, and ambiguities. Juristic conceptions, supposedly transcendent and apolitical, were either outworn dogmas of earlier times (Willis's '18th century constitution,'8 Dickinson's 'Locke petrified into an immortality of infallibility,' 9 Holmes's 'Mr. Herbert Spencer's Social Statics"), or simply incorporated political-economic biases reflexively favourable to business interests or comfortable classes. Generalist judges were ignorant of social and economic facts informing administrative policies. The civil trial procedures fetishized by attackers of bureaucracy were mocked as 'trial by combat' inefficient, protracted, favouring wealthier litigants, able to consider only issues raised by the parties, ludicrously trusting that the clash of opposing distortions will produce truth." The antidote to (empty) formalism and (outdated and biased) conceptualism is 'functionalism,' a pragmatic cast of mind bent upon solving concrete problems and armed with expert non-legal knowledge of specialized facts and experience. At this level the debate, consisting as it did mostly of name-calling, was relatively unilluminating. It got more interesting as the parties got more specific. II Realist institutional description as argument Some defenders simply tried to refute the caricatures by detailing how actual agency practice incorporated the due process safeguards that the critics said were missing. Frank asserted that in every SEC proceeding, the agency held public hearings, announced explicit standards for its decisions, made a record, and explained its decisions. It set elaborate procedural safeguards when it was both prosecuting and deciding. It also consulted with the industry about every rule. 2 Bureaucracies, he points out in If Men Were Angels, prefer adopting rules to standardless discretion; it is safer. Landis agreed: the prime failing of administrators was using legalism to avoid responsibility for exercising discretion, not exercising 7 Thurman W. Arnold, The Symbols of Government (New Haven, CT: Yale University Press, 1935) at 46 [Symbols]. 8 John Willis, 'The McRuer Report: Lawyers' Values and Civil Servants' Values' (1968) 18 U.T.L.J. 351 ['Lawyers' Values']. 9 John Dickinson, Administrative Justice and the Supremacy of Law in the United States (Cambridge: Harvard University Press, 1927) at 339-40 n. 7 [Administrative Justice]. 10 Lochnerv. New York, 198 U.S. 45 (1905) at 75 (perHolmesJ. dissenting). 11 See, e.g., Arnold, Symbols, supra note 7 at 172-98. 12 Jerome Frank, If Men Were Angels: Some Aspects of Government in a Democracy (New York: Harper, 1942) at c. 5 [If Men Were Angels]. HeinOnline -55 U. Toronto L.J. 408 2005 THE LEGAL REALISTS' DEFENCE OF ADMINISTRATION 409 discretion arbitrarily. 3 Frank added that agencies have discretion because industries want it. Business groups complain about discretion, but when the time comes to amend statutes, they ask for more; they prefer the speed and informality of relatively informal processes and of dispositions tailored to their particular needs rather than rigid rules. 'Rigid and inflexible prohibitions might well paralyze an industry.' 14 The bureaucratic clumsiness of which regulated interests complain often comes from the effort to make agencies more like courts. 5 Is the judicial process a superior upholder of the rule of law? Only, the realists argued, if one idealizes the process and ignores its actual functioning. In fact-finding, juries make decisions that are inscrutable, unexplained, and accepted as final and unreviewable. Why should such decisions be considered intrinsically superior to fact-finding by experts? Anyway, even jury trial was more process than most people got from the courts. Many of the decisions nominally issuing from courts were actually made by administrators exercising a practically unreviewable discretion. The police had discretion to arrest, bring charges, and extract confessions from suspects by the third degree. Prosecutors, combining prosecutorial and judicial powers, decided almost all criminal cases through plea bargains. Courts overlooked violations of formal rights and ratified almost all these decisions against the most vulnerable members of society without any real review or oversight.' 6 As the field of government action broadened, the 'earlier method of administration through the District Attorney" 7 had been transferred to administrative agencies, usually subject to much stricter constraints. Contrast to prosecutors, Frank points out, the SEC, which has only limited remedies, which it can only enforce after notice and hearing, to businesses well able to defend themselves.'" Arnold generalizes the point: all decision processes, including those of courts, have both formal and informal elements. The informal are used when the institution needs to do quick, practical, flexible decision making on the side. Courts preserve their ideal image as repositories of fundamental legal principle by recategorizing practical problem-solving functions as issues of 'procedure' or spheres of 'fact' to which an entirely different logic applies, so that decisions may be made byjuries, or special masters, or by reference to criteria apart from substantive law doctrines. 9 13 James M. Landis, TheAdministrativeProcess (New Haven, CT: Yale University Press, 1938) at 75. 14 Frank, If Men Were Angels, supra note 12 at 148, 150. 15 Arnold, Symbols, supra note 7 at 215. 16 Frank, If Men Were Angels, supra note 12 at App. VI. 17 Dickinson, 'Administrative Management, Administrative Regulation and the Judicial Process' (1941) 89 U.Pa.L.J. 1052 at 1055. 18 Frank, If Men Were Angels, supra note 12 at App. VI. 19 Thurman W. Arnold, 'The Role of Substantive Law and Procedure in the Legal Process' (1932) 45 Harv.L.Rev. 617 at 642-6. HeinOnline -55 U. Toronto L.J. 409 2005 410 UNIVERSITY OF TORONTO LAWJOURNAL Finally, the realists ridiculed the notion thatjudges are more impartial because more independent than administrators of political pressures and influences. 20 III Historical critique Advocates for a broad scope ofjudicial authority to review acts of administrative agencies often bolstered their case through arguments from Whig history: that Coke in Bonham's Case had declared the principle that acts of irresponsible commissions and even of Parliament must be subject to review, and if necessary adjudged void, for violations of fundamental law in the common law courts; and that this principle had been ratified by the American Revolution and thereafter encoded in American constitutional practice. Most realists did not bother much with these arguments, being content with modernist assertions that times had changed considerably since then and we ought not to be governed by an eighteenth-century, much less a seventeenth-century, constitution. Dickinson accepted the orthodox history but questioned the relevance of Coke's view of judicial supremacy part of a search for 'an effective practical check on a dangerous and otherwise irresponsible sovereign not ruling by popular right' to modern democratic government. 21 Frank, as usual, took a more iconoclastic approach. He debunked the 'legendary' Coke, pointing out that Coke never objected to the Privy Council or Star Chamber;22 he reproved Coke for hindering the development of flexible equityjurisprudence;23 he alleged that the procedures of High Commission, except where Puritans were concerned, were generally more efficient and more fair to the accused than those of common law;24 he debunked the claim that the American founders' understanding supported judicial supremacy, arguing tha

Willis's American Counterparts: The Legal Realists' Defence of Administration