Administrative Law by Kenneth Culp Davis Administrative Law by

Indiana Law Journal
Volume 27 Issue 4 Article 11
Summer 1952
Administrative Law, by Kenneth Culp Davis; Administrative Law, by

Reginald Parker
Ralph F. Fuchs
Indiana University School of Law
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Part of the Administrative Law Commons
Recommended Citation
Fuchs, Ralph F. (1952) "Administrative Law, by Kenneth Culp Davis; Administrative Law, by Reginald
Parker," Indiana Law Journal: Vol. 27 : Iss. 4 , Article 11.
Available at: https://www.repository.law.indiana.edu/ilj/vol27/iss4/11
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BOOK REVIEWS
ADMINISTRATIVE LAW. By Kenneth Culp Davis.* St. Paul: West

Publishing Co., 1951. Pp. xvi, 1024. $8.00.
ADmINISTRATIVE LAW. By Reginald Parker.** Indianapolis: The

Bobbs-Merrill Co., Inc., 1952. Pp. x, 344. $5.50.
Administrative law in the United States, despite its growing im-

portance and a large volume of controversial literature and of scholarly
articles dealing with particular aspects of it, has lacked not only rubrics
in the digests and encyclopedias until recently1 but also comprehensive
works to bring together its various aspects and furnish a starting point
for study and research.2 Now with the publication of these two books
it is supplied with a pair of texts which practicing lawyers, law teachers,
and students of law can use to excellent advantage. Understanding of
the subject and the insight with which problems in this area are handled
professionally should improve considerably as a result.
Neither book is the dull, uncritical type of text which has been so
common among law books in this country. Rather, each is the work of
a discriminating scholar whose analysis and judgments make first-rate
contributions to knowledge and to the ideas which can be applied in the
future. Each author takes vigorous positions with respect to many con-
troversial issues, with Davis especially suggesting solutions to many
troublesome problems; but opposing points of view are recognized and
justly stated. The result is enhancement of interest for readers and
stimulus to the thought of those who keep open minds or, perhaps, react
adversely because of opposing views. Each book can be read through for
general information or used in the search for authorities on a particular
topic.
Professor Davis's work is the richer of the two. Not only does it
devote approximately three times as much discussion to the same group
of problems, which even then are treated briefly, but it results from a
good many years of work that has been reflected in a battery of previous
* Professor of Law, University of Minnesota Law School.
** Professor of Law, University of Arkansas School of Law.
1. American Jurisprudence under the heading Public Administrative Law, and
the Fifth Decennial Digest, were the first works of this type to take cognizance of
the subject. The new A.L.R. and U.S. Supreme Court Digests also have the heading,
Administrative Law, which thus is becoming fairly universal.
2. Previous works of a general nature include F. T. VON BAUR, FEDERAL AD-
miNISTRATIvE LAW (2 vols., 1942), which was published before present conceptions
as to administrative law were consolidated by administrative procedure legislation;
FRANK E. COOPER, ADmINiSTRATIVE AGENCiES AND THE COURTS (1951), which reviews
administrative procedure problems through reported judicial decisions; and M. M.
CAnaow. THE BACKGROUND OF ADmINISTRATIVE LAW (1948), which purports only
to introduce the subject.
INDIANA LAW JOURNAL
articles in legal periodicals. These are here brought down to date, welded
together, and supplemented to form the substantial treatise that results.
In all of this work the author has made use of observation and experience
as well as of research in printed material.3 Professor Parker, 4 who has
made good use of printed sources, including Davis's articles to which
he gives full credit, has chosen to write with the utmost brevity and with
frequent use of footnotes to supplement the principal text; but the
presentation is adequate for those, at least, who read with faculties alert.
Both authors concentrate heavily on Federal material-Parker to
the virtual exclusion of material relating to the states and Davis with
incidental resort to significant lines of state authority that add to the
thought or the variety of experience presented in the book. The structure
of each book is based on the classification of subject matter which has be-
come standard in the field of administrative law since the report of the At-
torney General's Committee on Administrative Procedure and the adop-
tion of administrative procedure legislation have given it currency.
That classification employs the development, characteristics, and oper-
ating functions of administrative agencies; procedure in rule-making;
procedure in adjudication; and judicial review of administrative de-
terminations, as major categories. Davis, however, uses the titles of 20
chapters as main headings which are not grouped under the larger
categories they follow; while Parker gathers his 22 chapters into six
"Parts" of his book. The first two of these, together with Chapters 1
and 2 of Part Three, deal with matters in the first main category mentioned
above. Parts Four, Five, and Six deal with judicial review, including
damage claims for wrongful administrative acts; but together these
cover only 50 pages, whereas Chapters 3 and 4 of Part Two are made
to do duty for administrative regulations and decisions, respectively-
each in more than 50 pages. The concentration of complex procedural
matters under single subdivisions of the latter two chapters detracts
from clarity of presentation. Subtopic (3) of the chapter on Decisions,
3. Professor Davis was a member of the staff of the federal Attorney General's
Committee on Administrative Procedure and the author of several of its monograph
studies of specific agencies. He also served on the staff of the Board of Investigation
and Research, established by the Transportation Act-of 1940.
4. The Federal Administrative Procedure Act, 60 STAT. 237 (1946), 5 U.S.C.
§ 1001 et seq., is printed in the appendix to each of the books under review. In
Indiana two statutes embrace, the same subject matter: the act concerning rules and
regulations, IND. ANN. STAT. §§ 60-1501 et seq. (Burns Repl., 1951) and the act con-
cerning administrative adjudication, id. § 63-3001 et seq. The Model State Administra-
tive Procedure Act issued by the National Conference of Commissioners on Uniform
State Laws in 1946, is well discussed in a symposium in IowA L. REv., No. 2 (January,
1948). An increasing number of states are adopting similar legislation.
5. Pp. 131-133.
BOOK REVIEWS
for example, which takes up 30 pages, covers in rapid-fire fashion, with-

out a break, all of the incidents of an adjudicative hearing, from notice
through the conduct of the hearing and the applicable principles of evi-
dence to the process of decision. In Davis's book these same matters
take up seven chapters covering almost 300 pages.
A difference between the stated concepts of administrative law em-
ployed in the two books appears in their early pages. Both confine the
subject largely to procedure. Davis, however, accepts the limitation of
the scope of administrative law for professional legal purposes which
confines it to. matters "involving rights of private parties" and omits
"internal problems affecting only the agencies and their officers and
staffs." Parker, on the other hand, undertakes to deal with all of the
law that is common to the various executive agencies of government;
but he does not carry out this promise by including an account of civil
service, budgetary, and management procedures. The only reflection
of his broader definition that is visible, aside from reiterated insistence
upon it,8 is in good, brief discussions of the scope of the inherent power
of the President 7 and of the contrasting degrees of security of tenure
among civilian and military government personnel. 8 Davis too includes
procedure affecting the tenure of civilian employees;9 his discussion of
delegation and subdelegation of powers, while dealing lightly with his-
torical aspects, is satisfactory;1O° and his chapter on Supervising, Prose-
cuting, Advising, Declaring, and Informally Adjudicating 1 enters into
many forms of administrative activity other than those conventionally
deemed to affect private rights.' 2 This chapter is, indeed, one of Davis's
most original and masterful contributions to the literature of adminis-
trative law. In it, as well as at numerous other points in his book, Davis
makes excellent use of material relating to administrative practice and
to legislative history and action. His interweaving of this material with
statutes and judicial decisions is one of the best features of the volume.
Outstanding among the matters which Davis discusses fully, with
both realism and significant thought of his own, are administrative in-
vestigations; the legal effect of various types of general regulations; the
numerous varieties of rule-making and adjudicative procedures, with
reference to parties, notice and the framing of issues including pre-
6. Pp. 85-87.
7. P. 100.
8. Pp. 247-248.
9. Ch. 2.
10. Ch. 4.7
11. -Le., rule-malking and adjudication.
12. Pp. 105-107.
INDIANA LAW JOURNAL
hearing conferences, evidence, official notice, separation of functions,

and bias; "institutional decisions" involving the contributions of hear-
ing officer, staff, and agency heads to the final product; res judicata in
relation to administrative decisions; primary jurisdiction and prerequi-
sites to judicial review; forms of proceedings for judicial review; and
scope of judicial review. Although differing with Davis on some con-
troversial points, the present reviewer finds nothing significant to criticize
in his presentation.
Parker deals much more briefly with roughly the same range of
problems. He relies almost wholly on judicial decisions and statutory
provisions; and his exclusion of state materials results in the omission
of any discussion of the common-law extraordinary remedies, such as
mandamus and certiorari, which are not used in federal judicial review
proceedings. Certain weaknesses detract from the book, at least in the
opinion of this reviewer. There is some tendency to use the traditional
textbook method of positive statements, supported by authority, which
may be qualified elsewhere and call for the reader to be on his guard lest
he be misled. For example, the provisions of the Federal Administrative
Procedure Act with regard to hearing examiners and the separation of
functions in respect to them are summarized without recognition in the
text at this point that some of the provisions do not apply in initial li-
censing or in rule-making as broadly defined by the Act, 13 although these
limitations are stated elsewhere. 1 4 At another point the statement is
made that due process requires that the right to counsel be accorded "in
a legal procedure ;-'15 and it requires a search of footnote cross-references
to an earlier part of the text to disclose that the due process requirement
is severely limited. Due process is, indeed, somewhat overworked in
Professor Parker's text. To it are attributed, at least in particular pas-
sages, the procedural requirements of the first and second Morgan de-
cisions' 8 as well as other detailed requirements relating to notice and
hearing, 1 7 together with the entire requirement that findings accompany an
administrative decision; 18s whereas actually these rest on judicial inter-
pretation of statutes to a considerable extent. Professor Parker stresses,
13. Pp. 66, 232-240.

14. P. 219.
15. P. 49.
16. Pp. 40-53.
17. P. 236.
18. P. 34. "Administrative acts of all kinds . . . may or nay not be required to
satisfy due process of law .... " (italics in original). See generally, pp. 34-38.
At p. 39, however, "due process is a phrase of no precise meaning"; and at p. 203
the author refers to situations where "due process requirements are somewhat below
the customary level."
• BOOK REVIEWS
although not consistently, the view that procedural due process embodies
defined minimum standards and that it does or does not apply to par-
ticular proceedings as judicial decisions applying a constitution or stat-
ute determine, rather than the view-more logical for some--that due
process must always be accorded and that the questions to be answered
relate to what is due under particular circumstances. 19 Finally Pro-
fessor Parker, despite his avowed broad governmental approach to ad-
ministrative law and his devotion to at least one brand of jurisprudence, 20
betrays rather narrow professional prejudices at some point. Without
actually examining their possible utility, for example, he objects sweep-
ingly to special requirements for admission of lawyers to the bars of
particular agencies;21 and he stigmatizes with a mere exclamation point
the freedom which the Administrative Procedure Act gives to agencies
to have recommended decisions in rule-making and initial licensing pre-
pared by a staff member "(not necessarily a trial examiner!). ' ' 22 There
is here none of the sort of examination of the extent of the need for
staff contributions to a decision under some circumstances, such as Davis
gives in his chapter on institutional decisions.
Although more might be said by way of criticism of particular
passages in Parker's book, the over-all judgment remains that, read with
due care, it constitutes a useful guide to the law of administrative pro-
cedure, with good analysis and commendable attention to the merits of
controversial issues. Davis's book, in addition to these qualities, draws
more thoroughly on available data and constitutes an addition of major
importance to American legal literature.
Ralph F. Fuchst
19. Citations to Kelsen and to no other comparable authority are frequent

throughout his book.
20. Pp. 56-57.
21. P. 235.
t Professor of Law, Indiana University School of Law.

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Indiana Law Journal

Volume 27 Issue 4 Article 11

Administrative Law, by Kenneth Culp Davis; Administrative Law, by

Follow this and additional works at: https://www.repository.law.indiana.edu/ilj

Part of the Administrative Law Commons

This Book Review is brought to you for free and open

ADMINISTRATIVE LAW. By Kenneth Culp Davis.* St. Paul: West

ADmINISTRATIVE LAW. By Reginald Parker.** Indianapolis: The

Administrative law in the United States, despite its growing im-

for example, which takes up 30 pages, covers in rapid-fire fashion, with-

hearing conferences, evidence, official notice, separation of functions,

13. Pp. 66, 232-240.

19. Citations to Kelsen and to no other comparable authority are frequent

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