With a New Introduction by Kevin M. Stack

With a New Introduction by Kevin M. Stack Professor of Law Vanderbilt University Law School

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Reclaiming "the Real Subject" of Administrative Law: A Critical Introduction to Bruce Wyman's The Principles of the Administrative Law Governing the Relations of Public Officers (1903) © 2014 Kevin M. Stack ISBN 978-1-61619-426-0 Lawbook Exchange edition 2014 The quality of this reprint is equivalent to the quality of the original work.

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www.lawbookexchange.com Library of Congress Cataloging-in-Publication Data Wyman, Bruce, 1876-1926, author. The principles of the administrative law governing the relations of public officers / by Bruce Wyman ; with a new introduction by Kevin M. Stack, Professor of Law, Vanderbilt University Law School. pages cm. Includes bibliographical references and index. ISBN 978-1-61619-426-0 (hardcover : alk. paper) 1. Administrative law--United States. I. Stack, Kevin M. writer of introduction. II. Stack, Kevin M. Reclaiming "the real subject" of administrative law : a critical introduction to Bruce Wyman's The principles of the administrative law governing the relations of public officers (1903) III. Title. KF5402.W9 2014 342.73'041--dc23 2014007872

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Reclaiming “the Real Subject” of Administrative Law A Critical Introduction to Bruce Wyman’s The Principles of the Administrative Law Governing the Relations of Public Officers (1903) Kevin M. Stack* Bruce Wyman’s treatise on administrative law, The Principles of the Administrative Law Governing the Relations of Public Officers (1903),1 provides the first development in American legal thought of the idea that the primary grounds of administrative legality are the internal practices and procedures that agencies adopt to structure their own exercise of discretion, as opposed to the standards and forms of judicial review. Wyman’s conception was remarkable for its day. At the end of the nineteenth century, many scholars, including Wyman’s colleagues at Harvard Law School, identified law with judicial decisions. But Wyman, writing a mere three years after his graduation from and subsequent appointment to the faculty of Harvard Law School, did not focus on “the external law of administration” imposed by courts, but rather mined “internal administrative law” created by agencies as the “real subject” of inquiry and source of administrative legality.2 __________ *

Professor of Law, Vanderbilt University Law School. I would like to thank Nicholas Bagley, Lisa Bressman, Edward Rubin, Daniel Sharfstein, and Ganesh Sitaraman for helpful comments on this introduction. 1 First published by Keefe-Davison Co., St. Paul, Minn., 1903. 2 BRUCE WYMAN, THE PRINCIPLES OF THE ADMINISTRATIVE LAW GOVERNING THE RELATIONS OF PUBLIC OFFICERS 12 (1903) [hereinafter

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Wyman’s conception did not, however, define the path of administrative law in the twentieth century. By the 1920s, administrative law scholarship had come to focus almost exclusively on judicial review of administrative action—its availability, standards, record for review, and remedies—and the signature intellectual contribution of Wyman’s treatise fell almost completely out of view. We owe contemporary interest in Wyman’s treatise to Jerry Mashaw who not only excavated it from near obscurity, but also illustrates the usefulness of Wyman’s category of internal administrative law as a basis for reformation of administrative law.3 “To the extent that we are interested in the reform of administrative law in the United States,” Mashaw writes, “we might do better to operate on the internal law of administration than by ceaselessly tweaking the external law.”4 Wyman’s treatise thus serves as a fount for this unfinished project devoted to internal administrative law. The treatise contains many other insights that resonate in current debates. Indeed, in important ways, we can read Wyman as prescient: In terms strikingly familiar to our own, he defends broad legislative delegation to agencies, with agencies exercising their expert discretion to specify the requirements of the statute. He schematizes agency action as falling into executive, legislative, or adjudicative forms, offering an account of the unique processes and legal effects of each form. Wyman defends judicial deference to Wyman, Principles]. Subsequent references to Wyman’s treatise are in parenthesis to the pagination of the first publication retained in this republication. 3 See JERRY L. MASHAW, CREATING THE ADMINISTRATIVE CONSTITUTION: THE LOST ONE HUNDRED YEARS OF AMERICAN ADMINISTRATIVE LAW (2012). 4 Mashaw, supra note 3, at 313. For a helpful recent step in this direction, see Sidney Shapiro, Elizabeth Fisher & Wendy Wagner, The Englightenment of Administrative Law: Looking Inside the Agency for Legitimacy, 47 WAKE FOREST L. REV. 463 (2012).

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administrative determinations in terms that parallel James Bradley Thayer’s famous understanding of judicial deference to the constitutionality of legislation, a particularly striking position as “review” generally occurred at Wyman’s time under common law forms of action against the officer individually. In these and other respects, Wyman presents a more comprehensive administrative jurisprudence than is commonly assumed to exist at the time of his writing. Wyman’s treatise also provides a bracing reminder of other topics that fall within a broad definition of the field that have been carved out of it. Wyman, for instance, addresses police investigations and foreign affairs as part of the law of enforcement, and thus within the ambit of administration, prompting the contemporary reader to consider what has been lost from the isolation of these and other areas from the cognizance of the field. For the student of American legal thought, Wyman’s treatise offers many surprises. The Principles of the Administrative Law bucks the central trends of Wyman’s period—and more particularly his milieu at Harvard Law School. In important respects, the treatise defies the legal formalism of the era and implicitly rejects laissez faire conceptions of the role of the state. Wyman saw a core and expanding regulatory mission for the state; he recognized that regulatory law will be concretized by agencies; and he understood that agencies make law by blending law and fact in a manner that makes it hard to separate law from politics. With the hope of encouraging study of Wyman’s treatise, the first section of this introductory essay provides a brief summary and reconstruction of the principal features of Wyman’s vision of administrative law. The overview is selective; it is more a provocation and preview than a comprehensive restatement of Wyman’s intricately organized book. The second section briefly describes the treatise’s uneasy

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relationship with the dominant intellectual currents of the day and considers why the treatise was neglected for so long.

I. Overview of the Treatise Wyman understands public law to have two coordinate branches, administrative law and constitutional law. (23) Constitutional law “prescribes the broad outlines of government;” with administrative law serving as it’s “complement.” (23) Administrative law consists of “that body of rules which defines the authority and the responsibility of that department of government which is charged with the enforcement of the law” (1), that is, “those rules which govern the executive department.” (23) Administrative law, in turn, has two branches, the “external law” and the “internal law” of administration. (4) “Together, the external law and the internal law make up the law of administration.” (4) This distinction, which appears to be original to Wyman, provides one of the foundational concepts in the treatise. The internal law of administration is Wyman’s primary focus, and holds the most promise for reclamation. To understand Wyman’s project for the internal law of administration, it makes sense to begin with Wyman’s account of the external law. The External Law of Administration External administrative law concerns “the relations of the administration or of officers with citizens.” (4) The external law is defined by common law forms of action that permitted suits against individual officers for damages, and thus is characterized by its enforceability in a judicial tribunal. At the time of Wyman’s writing, there was no legislative authorization to sue the sovereign for injunctive relief or damages, as now provided by the Administrative Procedure

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Act (APA) and the Federal Torts Claims Act, among other statutes. As Jerry Mashaw and Thomas Merrill have explained, “review” of an officer’s action happened in the context of suits against individual officers on common law claims and under prerogative writs.5 In a tort suit against the officer, the officer would offer the authorization by law as his defense; the court’s evaluation of the defense provided review of the officer’s authorization. This common “law of the land” (18) constituted, for Wyman, the external law of administration. We might identify this law as “external” in at least two senses. First, as to source, administrative functions played no role in constituting this common law; it is created by judges and exists independently from administrative powers. Second, this law is external to administration in the sense that it functions as monitoring by institutions outside of administrative bodies. (22) Today, the law establishing the grounds and standards of judicial review of agency action is external to administration in both of these senses. Wyman does not provide a detailed discussion of the common law writs and forms of action; instead, he endeavors to provide a more general statement of this external law, as part of his effort to isolate “the first principles of the law of administration.” (Preface) Wyman identifies the following as the “first rule” of external law: “that action in accordance with legal authorization is legal and the official so acting will always be justified; and that the action without warrant of law is illegal, and the official so acting will always be considered a private wrong-doer.” (9–10) Wyman describes this rule, as “[w]ithout doubt,” “the general rule of the common law __________ 5

Jerry L. Mashaw, Reluctant Nationalists: Federal Administration and Administrative Law in the Republican Era, 1801–1829, 116 YALE L.J. 1636, 1736 (2007); Thomas W. Merrill, Article III, Agency Adjudication, and the Origins of the Appellate Review Model of Administrative Law, 111 COLUM. L. REV. 939, 947–949 (2011).

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governing the relations of officials with citizens.” (10) This rule, as Wyman explains, has both a negative and positive element. The negative element is that action without warrant in law, that is, without authorization or outside the grant of jurisdiction to the official, will always be illegal. This is the fundamental principle of ultra vires. As Wyman illustrates through United States v. Lee,6 where the seizure of the claimant’s property was without any legal authorization, even if ordered by the President, the seizure is unlawful and the claimant is entitled to relief: “All officers of the government from the highest to the lowest are creatures of the law and are bound to obey it.” (11) The positive side of this first principle of the external law has a broad sweep: “that all official action in pursuance of discretion vested in the officer by law is action in accordance with laws in whatever way that discretion may be exercised.” (11) Wyman remarks that this positive side of the rule “is of great consequence; it is, indeed, the foundation of administrative law in a country subject to the common law system.” (11) The scope of what it leaves unreviewable will be startling to the contemporary reader. Contemporary law under the APA makes arbitrariness review and review for abuse of discretion central grounds of judicial oversight of agencies. In contrast, as Wyman states the law of his time, “[t]he courts, therefore, in enforcing the external law of administration can only inquire whether the action has been in excess of power, never whether the action has been in abuse of power. In legal phrase, the question before the court is one of the jurisdiction; it is not one of the merits.” (20) Outside of this jurisdictional review, the only other mode of judicial review was for compliance with ministerial duties (those duties that require a “precise, definite act” such that __________ 6

106 U.S. 196 (1882).

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“all discretion is shut out by positive command of the law” (148))—the heartland of mandamus review. As famously illustrated by Marbury v. Madison,7 mandamus provides enforcement of such duties; in Wyman’s words, the performance of ministerial duties “will be commanded by the court.” (149) Wyman thus describes a regime in which the presumption of reviewability for arbitrariness or abuse of discretion is reversed; judicial review is incident to common law forms of action, and as such, only available for the enforcement of ministerial duties and ensuring the officer did not act beyond his jurisdiction. The sketch provided thus far would be consistent with reading Wyman as merely providing a restatement of the common law forms of action, untroubled by the delicate concerns implicated in the allocation of power between agencies and courts that characterize a mature administrative law. It might also be compatible with a formalist understanding of administration, in which most duties were understood as ministerial, and thus the unavailability of review for discretionary duties would be notable, but not a defining feature of the system. Wyman’s further exposition undermines both of these characterizations and reveals an understanding of the relation between courts and agencies that not only resonates today, but also illustrates the seeds of these ideas at the turn of the century. The conventional understanding of the standard of review in the context of a common law officer suit is de novo, with the court independently assessing whether the action fell within the scope of legal authorization.8 Wyman, in contrast, endorses deference to the official’s legal determinations and to the official’s application of law to fact as it pertains to the agency’s scope of power—and invokes a conception of __________ 7 8

5 U.S. (1 Cranch) 137, 174 (1803). See Merrill, supra note 5, at 951.

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legislative delegation to agencies that justifies why agencies are properly charged with specifying the content of the law. Wyman’s treatment of review of administrative regulations illustrates his embrace of deference to agency’s legal determinations. To assess whether regulations issued by the Secretary of the Treasury fall within the scope of their authorizing statute, Wyman endorses the standard articulated in Boske v. Comingore:9 In determining whether the regulations adopted by [the Secretary] are consistent with law, we must apply the rule of decision which controls when an act of Congress is assailed as not being within the powers conferred upon it by the Constitution; that is to say, a regulation should not be disregarded or annulled unless in the judge of the court it is plainly and palpably inconsistent with law. . . “Those who insist that such a regulation is invalid must make its invalidity so manifest that the court has no choice except to hold that the Secretary has exceeded his authority.” (291; see also 69–70)

Here Wyman adopts James Bradley Thayer’s deferential standard for constitutional review of legislation as the standard which should apply to review of the validity of administrative regulations, namely, that the violation be “so manifest as to leave no room for reasonable doubt.”10 Thayer had been Wyman’s teacher and colleague for Wyman’s first two years on the faculty before Thayer’s death in 1902.11 Thayer is credited with offering one of the first theories of __________ 9

177 U.S. 459 (1900). James Bradley Thayer, The Origin and Scope of American Doctrine of Constitutional Law, 7 HARV. L. REV. 129, 140 (1893). 11 CHARLES WARREN, HISTORY OF HARVARD LAW SCHOOL AND OF EARLY LEGAL CONDITIONS IN AMERICA, VOL. II, 472 (1908) (noting the “chief and saddest event of the year was the sudden death of Professor James Bradley Thayer on February 14, 1902”). 10

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judicial review of legislation grounded in the institutional balance between the judiciary and legislature. Wyman recognizes that balance is no less implicated in review of the validity of agency regulations. Indeed, the Thayarian standard Wyman embraces exceeds contemporary doctrine, identified with the Chevron decision,12 as to the deference granted to the agency on determinations of law. Wyman also saw a critical role for deference to an agency’s application of law to fact, even where the application goes to the agency’s jurisdiction (determinations later called “jurisdictional facts”). This view appears in Wyman’s pointed criticism of Justice Holmes’s resolution of the well-known nuisance case, Miller v. Horton.13 In Miller, officers of the Board of Health killed the plaintiff’s horse under an order from the Commissioners on Contagious Diseases in Animals because they determined the horse had glanders, an infectious disease. The trial court found that the horse did not in fact have glanders but denied plaintiff relief on the ground that the Board’s action was justified. On appeal, the Supreme Judicial Court in Massachusetts reversed. Writing for the majority, Justice Holmes reasoned that “the authority and jurisdiction of the commissioners to condemn the plaintiff’s horse under section 13 was conditional upon its actually having glanders.”14 Wyman would have dissented: “With all due respect to so eminent a judge, it seems that the solution of this case should be that the legislation had left the determination of the question of whether the animals were diseased or not to the fair discretion of the administration.” (362) Wyman’s critique of Justice Holmes’s position foreshadows the development of __________ 12

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). 13 152 Mass. 540, 26 N.E. 100 (1891) 14 26 N.E. at 103.

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deferential judicial review of agency factual determinations. Thus Wyman, far from providing a detached recounting of common law forms of action as merely de novo, embraces judicial deference to agency decisions, both on law and facts, within these common law forms—and reveals a keen awareness of the institutional balance between the judiciary and the executive. Scholars have typically not viewed these ideas as having much prominence in academic writing until the generation of scholars following Wyman.15 Just as intriguing and farsighted, Wyman offered a theory of delegation to justify the role of deference even within the narrow confines of the common law forms of action. His account so closely resembles contemporary understandings it is worth quoting in some length: Upon the whole the most of administration is with discretionary powers; and that is a desirable condition of things in government. The legislature will do well to pass its laws in general form and leave the executive to work out the details in enforcement. The methods and forms of administration are better decided upon by the department which is charged with enforcement of the law. As a matter of convenience, this should be the solution; since the executive department will be well versed in the difficulties that attend administration as well equipped with the means best equipped to carry a law into effect. . . . Accordingly, it seems that it will always be proper policy for the legislature to act upon to pass a general statute upon any subject matter and to leave the determination of the application of that statute to the executive. That is, again, that in the most of administration there should be discretion. (142–43)

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Merrill, supra note 5, at 951–952.

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This short passage encapsulates a great deal of thought on legislative delegation and administration: Because the executive department will be “well versed” in the difficulties of carrying a law into effect, executive officers are in a better position to decide on the form and mode of administration (an early seed of the fundamental principle now associated with Chenery II16), and the legislature should delegate broadly. Indeed, Wyman is saying that the point of legislative delegation is to grant officers discretion. Putting this thought that most delegation will (and should be) vesting of discretion in agencies together with the unavailability of review of agencies exercise of discretion reveals the complete picture of the external law of judicial review: It operates largely on the margins, principally to check that agencies neither act as ultra vires nor neglect their nondiscretionary duties. But most of the work of administration, which involves the exercise of discretion, falls outside the cognizance of the external law of administration, and thus the cognizance of courts.17 Interestingly, for Wyman, the prohibition on judicial control over how an officer exercises discretion is not only grounded in executive expertise, but also in a strict conception of separation of powers. Wyman views the separation of powers as constituting each of the departments of government as “independent” and “co-ordinate,” such that “the executive cannot be subordinated to either of the __________ 16

SEC v. Chenery Corp., 332, U.S. 194, 203 (1947) (agencies have wide discretion to choose the procedural form through which they act). 17 For an account of nineteenth century review of administration, and critique of the current presumption of reviewability, see Nicholas Bagley, The Puzzling Presumption of Reviewability, 127 HARV. L. REV. 1285 (2014). Interestingly, this execution conception of administration is in some tension with his later reliance on the common law, administered by courts, as a primary source of substantive regulation of new forms of industrial organization, including of public utilities. See Bruce Wyman, State Control of Public Utilities, 24 HARV. L. REV. 624, 626, 633 (1911).

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departments by any means.” (62) In Wyman’s view, the exclusion of judicial review of the exercise of discretion follows from this basic division and characterization of authority. In other words, once the exercise of discretion by officers is understood as an exercise of “executive” power, review by the judicial department is barred: “[T]he judicial department will not, therefore, be competent to review the evidence before the officer and revise his judgment.”18 (139) Indeed, Wyman advises, unless the prohibition on judicial review of executive discretion is established, “the administration can have no true independence in the enforcement of the law, since it will be without any real freedom of action.” (135–136) Thus it makes sense that, for Wyman, “[u]pon the distinction between a discretionary duty from a ministerial duty everything turns.” (137) That distinction marks the boundary of reviewable and unreviewable action. The external law of administration thus authorizes only a very narrow range of judicial review of the actions of public officers, leaving unreviewable the bulk of administration: how officials exercise power that involves discretionary duties.

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It is on these grounds that Wyman criticized the outcome in United States v. Duell, 172 U.S. 576 (1899), in which the Supreme Court upheld a statute permitting a court of appeals to review decisions of the Commissioner of Patents. See Wyman, Principles, at 82–85. Wyman protests, “How can there be a more flagrant example of the subordination of one of the great departments to another than is seen in this case, where a judicial court is put over an administrative office, where the action of an executive body is subject to revision by a judicial body. . . . And the end of a series of statutes might be to make the Chief Justice and the Associate Justices of the United States pass upon the propriety of every action of the President and Cabinet of the United States.” (84)

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The Internal Law of Administration This narrow scope of judicial review does not, for Wyman, exhaust the contents of administrative law but rather defines the context in which its “real subject” operates—that is, the internal law of administration which addresses the constraints, practices and procedures developed by administrative bodies to structure how officials exercise administrative powers. Wyman’s characterization of the internal law of administration is his most distinctive contribution. Wyman conceives the internal law of administration as a law of collective action for bureaucracies. Wyman defines this internal law as concerning “the relations of officers with each other, or with the administration.” (4, 14) Internal law addresses “the fact that many officers are bound together in action,” and thus seeks to expose “the position of the officer in his organization and his function in its action.” (14) The internal law thus concerns the allocation of authority among the many actors within the agency and the practices by which their individual actions constitute a collective action on behalf of the entity. Wyman acknowledges that this internal law is in part positive, something discernible as a social fact or institutional practice. The difficulty in studying administration, Wyman remarks, is “the problem is as often institutional as it is legal.” (22) The “proper relations of the officials in the administration is the institutional problem.” (23) But the internal law still has normative content; it is concerned with the “proper” relations of officials (23), “whether there has been proper or improper administration.” (20) The internal law thus is the set of norms, procedures and practices that structure and unite activities of officers into proper collective action. Wyman’s conception of the internal law of administration, as Mashaw has forcefully argued, has not only been

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overlooked by contemporary administrative law scholarship, but provides a critical feature of administrative legality— whether in domestic administrative systems or for the project of global administrative law.19 Given that oversight by elected officials is frequently politically motivated and review by courts comes sporadically and later in time, Mashaw argues, “[a] robust internal law of administration is always necessary to systemic legality and is often the most constant protector of private rights.”20 The suggestion that agency’s own internal decisions on organization and procedure constitute a “law” does not make sense if we identify administrative law with external constraints on agency discretion.21 But, as Mashaw explains, that understanding confuses the hierarchical position of a law within a legal system “with how to identify what counts as law.”22 Administrative practices, no less than judicial practices, may constitute law so long as those practices, like their judicial counterparts, have a normative element that recognizes their law-like character.23 About these matters of jurisprudence, Wyman was not confused. Indeed, his treatise reflects an industrious effort to schematize the elements of internal administrative law. A central element of this internal law is the organization of administration. As he writes, “[w]hen many officers are found in action together the law must provide for their interrelation.” (185) “It is the internal law of the administration to a large degree that deals with these complex matters of organization; it has to solve these intricate matters by theories of its own.” (185) Centralized administrations, like the federal government (203), must “of necessity be a matter of __________ 19

Mashaw, supra note 3, at 281. Id. at 223. 21 Id. at 280–281. 22 Id. at 281. 23 Id. 20

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devolution of powers of superior upon inferior.” (204) For Wyman, the distinction between discretionary and ministerial duties is the key to understanding the delegation of power internal to centralized administration, with discretionary duties by superiors eventually concretizing into ministerial duties of inferior offices. In the usual process of administration, for example, “the head of a department gives a general order to the chief of a bureau; the result is that it is the ministerial duty of the chief of bureau to act, but what action he shall take is within the discretionary power allowed to him by this general order.” (215–16) This process recurs down the hierarchy until it ultimately reaches a lower-level official whose only duty is ministerial. (216) Wyman understands this allocation and reallocation of discretionary and ministerial duties to be the organizational basis for all methods of administration.24 (261) As part of the internal law, Wyman identifies “three processes of administration: First, administration by execution; second, administration by legislation; third, administration by adjudication.” (262) These processes are structured by their own internal law. Perhaps of greatest interest among these three processes is Wyman’s treatment of the administration by legislation, what we call rules or administrative regulations. Wyman sees the legislative functions of administration as having both written and unwritten elements. Wyman describes the function of written __________ 24

Not surprisingly, Max Weber’s later conceptualization of bureaucracy also recognized the hierarchical structuring of the organization, through general orders as central to “modern public administration.” See Max Weber, Essays in Sociology, reprinted in 58 GREAT BOOKS OF THE WESTERN WORLD 143–145 (Mortimer J. Adler ed.1990) (Chapter 8, Bureaucracy, I: Characteristics of Bureaucracy). For a contemporary account of the concepts of supervision and authorization in bureaucracy, see EDWARD L. RUBIN, BEYOND CAMELOT: RETHINKING POLITICS AND LAW FOR THE MODERN STATE 96–109 (2005).

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regulations in terms sympathetic to contemporary understanding. Legislative regulations are necessary because “[w]hen the law is put in the statute book it is not specific enough for administration.” (285) That is, the law “requires further elucidation. That is the office of the legislation which is done by administration.” (285) With this essential function of specifying the law so it is in a shape for “convenient administration,” Wyman already saw the seeds of the ubiquity of regulations as the operative source of legal obligations imposed by the government on the public: These regulations represent the exercise of a very considerable power on the part of public officers in their relation with the public. And they serve a purpose in the administration not commonly appreciated. There are innumerable instances of these regulations. The regulations, directions, circulars, instructions, forms, promulgated by the executive department confront the citizen in all his dealings with the government. (286)

So what, then, is the unwritten legislative function of administration? “To note an analogy,” Wyman explains, “it may be said that the administration has statute law of its own—its regulations—and that administration has as well common law of its own—its customs.” (294) The “rules” governing administration, Wyman writes, may be both written and unwritten, and “so long as administration proceeds by common consent in subjection with a body of rules, it makes no difference how many of those rules are written and how many of them are unwritten.” (294) This unwritten law, a “national executive common law” (297), has a critical role. While executive officers are generally limited by statute, Wyman admonishes that it would reflect a foolish misunderstanding “[t]o attempt to regulate by law the minute movements of every part of the complicated machinery of government,” (296)—an “unpardonable ignorance” that no

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doubt has claimed adherents in generations of students of administration. But even if it is foolhardy to specify in written law all operations of government, Wyman suggests that there must be some source of guidance and constraint. Wyman’s answer is the “common law” of executive power. “Hence,” Wyman writes, “usages have been established in every department of government which have become a kind of common law, and regulated the rights and duties of those who act within their respective limits.” (296) The idea is that executive usage, or “construction of the statute in practice” when adhered to over a long period of years “must be regarded as absolutely conclusive in its effect.” (299) Wyman thus sees executive gloss on a statutory power, when long maintained, as determining the meaning of the law and operating as a critical protector of legality in a fashion similar to the common law in courts: The theory of stare decisis as it is understood in the courts of law is thus to a certain extent the rule in offices of the executive departments. It would be unsatisfactory administration indeed where the determination of each question was as different as caprice might dictate. What is wished is an orderly administration, in which precedents are regarded, in which the principles involved in those precedents are respected, as the cases that are to govern future administration. That is the recognition of an unwritten body of law. No administration that does not proceed in that way can succeed. (303)

While the opinion giving function of the Office of Legal Counsel has received some attention as a source of law and precedent within the executive branch,25 Wyman envisions a __________ 25

See Trevor W. Morrison, Stare Decisis in the Office of Legal Counsel, 110 COLUM. L. REV. 1448, 1492–1497 (2010) (defending a theory of stare decision for OLC); Dawn E. Johnsen, Faithfully Executing the Laws:

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broader array of stable practices across the full scope of administration as constituting a set of rules that anchor agency decision making, a customary law of administration.26 Here the legality of administration is more a matter of its own internal constraint than compliance with an external law. Wyman thus invites reconsideration of the place of agency practice in securing systemic legality within the administrative state, as opposed to naively trying to vanquish or micromanage that discretion from outside. Wyman invites this consideration as to a much broader array of enforcement and executive entities than fit within the current gauge of administrative law. With the law governing public officers, Wyman includes powers associated with war, such as coercion and apprehension (266, 272), powers associated with police work, such as arrest and seizure (275, 278), and revenue collection (282). With a few exceptions, the executive’s war powers and policing have fallen outside the occupation, even if not the definitions of, administrative law.27 Internal Legal Constraints on Executive Power, 54 UCLA L. REV. 1559 (2007) (examining OLC as a source of legal constraint on executive action); see also Curtis A. Bradley & Trevor W. Morrison, Historical Gloss on the Separation of Powers, 126 HARV. L. REV. 411, 417–424 (2012) (documenting reliance by courts on historical practice in determining the separation of powers). 26 See John Gardner, Some Types of Law, in COMMON LAW THEORY 51, 6–74 (Douglas E. Edlin, ed. 2007) (distinguishing customary law in foro, of officials, from the Common Law). One prominent example is FDA v. Brown & Williamson Tobacco Corp., 529 U.S.120, 145 (2000), in which the court relied on the agency’s consistent construction of its statute as not authorizing the agency to regulate tobacco as a reason for prohibiting the agency from so regulating, despite solid textual arguments for its permissibility. 27 For policing, the canonical exception is Kenneth Culp Davis. See, e.g., POLICE DISCRETION (1975); for understanding prosecution as a mode of administration, see, e.g., Rachel E. Barkow, Administering Crime, 52 UCLA L. REV. 715 (2005); Rachel E. Barkow, Institutional Design and the Policing of Prosecutors: Lessons from Administrative Law, 61 STAN.

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II. Context and Consequence The Principles of the Administrative Law is a remarkable book for its time and intellectual climate. At the broadest level of generality, Wyman’s treatise could be viewed as consistent with the formalism often associated with Harvard Law School in the late nineteenth century. A core premise of Landgell’s conception of law is that law is a science defined by a set of principles, few in number.28 Wyman’s treatise could be viewed as of a piece with this systematizing conception at least in the sense that he sets out to state “the first principles of the law of administration.” Wyman’s treatise manifests other formalist impulses as well, perhaps most clearly revealed in Wyman’s categorical conception of the separation of powers. But the general thrust of the treatise defies important tenets of Langdellian formalism. Perhaps most obviously and importantly, the focus of legal thought at the time was almost exclusively on judges. Indeed, the identification of courts with the law was conceptually thicker than today. As Robert W. Gordon writes, administrative materials, like statutes, could not be “accommodated by the methods of private-law science.”29 As a result, a strain of the Harvard faculty “did not even consider statutes and administrative decisions to be ‘law’ until and unless they were interpreted by a court.”30 Not L. REV. 869 (2009). For consideration of war powers from an administrative perspective, see, e.g., Curtis A. Bradley, Chevron Deference and Foreign Affairs, 86 VA. L. REV. 649 (2000); Ganesh Sitaraman, Foreign Hard Look Review, 66 ADMIN. L. REV. (forthcoming 2014). 28 NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 15 (1995); Thomas C. Grey, Langdell’s Orthodoxy, 45 U. PITT. L. REV. 1, 13 (1983). 29 Robert W. Gordon, The Case for (and Against) Harvard, 93 MICH. L. REV. 1231, 1244 (1994) (reviewing LOGIC AND EXPERIENCE: THE ORIGINS OF MODERN AMERICAN LEGAL EDUCATION by William P. LaPiana (1994)). 30 Id.

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so for Wyman. While judges play an important role on the periphery of administrative law, his treatise is largely devoted to providing a systematic description of administrative bodies, their membership, structures, and practices; all of these features exist independently from judicial cognizance.31 Wyman’s focus on the internal law of administration strikingly illustrates how far his thought was from the views of his Harvard colleagues John Beale, who was also Wyman’s co-author, and John Chipman Gray that, as Neil Duxbury writes, “that judges always create the law and, accordingly, that nothing is law until declared to be so by the courts.”32 Just as fundamentally, Wyman did not define law in opposition to discretion. As opposed to defying the category of law, the exercise of discretion is, for Wyman, part and parcel of the specification and elaboration of the law. He not only recognized that the administrative state is founded on vesting discretion—that “most administration will be discretionary powers”—but further acknowledges the overlap of administration and politics. “[I]n large matters,” Wyman writes, “questions of administration cannot be separated from questions of politics.” (196) Even if courts never fully embraced the purest versions of formalism which posited law as a scientific system, Wyman’s embrace of discretion as a fount of law and its intermingling with politics, stands him closer to later pragmatic and realist writers than to his formalist colleagues. Indeed, for Wyman, the challenge for administrative law is to explain the constraints on discretion so that its exercise will be more than what “caprice would dictate,” but not to deny the existence of discretion, or to try to “try to regulate by law the minute movements” of government. (303, 296) Discretion is a condition of __________ 31

In this respect, Wyman’s treatise is closer to other early work on administrative bodies by Ernst Freund and Frank Goodnow. 32 Duxbury, supra note 28, at 51.

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administration, and eliminating it is not a precondition for administrative legitimacy. Although The Principles of the Administrative Law is devoted to stating a trans-substantive law, not substantive regulation, Wyman’s approach makes clear that he does not adopt laissez faire premises on the role of government. Prominent judicial decisions in the late nineteenth century embraced the idea, with strong echoes of Herbert Spencer, that “[p]rivate relations between economic actors were to be governed not by statutes, but by contractual rights and duties accepted by those actors.”33 The laissez-faire tenet that courts had a role in preserving an inviolable sphere of private contractual right from government regulation, a proposition commonly associated with Lochner v. New York34 but with roots well before it,35 finds no home in Wyman’s treatise. Wyman’s foundational law review article, The Law of the Public Callings as a Solution to the Trust Problem,36 published one year after The Principles of the Administrative Law, makes this explicit. Defending public callings as a basis for regulating trusts, Wyman ends with an attack on laissez faire conceptions: The positive law of the public calling is the only protection that the public have in a situation such as this, where there is no competition among the sellers to operate in its favor. So much has our law been permeated with the theory of laissez faire, which was but lately so prominent in the policy of our state, that the admission has been made with much hesitation that state control is even necessary. But the modern conclusion, after some bitter experience, is that freedom can be allowed only where conditions of virtual

__________ 33

Duxbury, supra note 28, at 30. 198 U.S. 45, 53 (1905). 35 Duxbury, supra note 28, at 30. 36 17 HARV. L. REV. 156 (1904). 34

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competition prevail, for in conditions of virtual monopoly, without stern restrictions, there is always great mischief. . . [State control of public service companies] is based upon the conclusion that it is no inconsistency for the State to leave the generality of business free from restrictions, while controlling with a strict code such lines of industry as are affected with a public interest.37

Wyman thus rejects the idea that government had no role to play in regulating the market actors; the question is the balance and scope of that regulation. Wyman, moreover, saw the list of businesses falling within the ambit of public service regulation as likely to grow, including not only telephone service, but other utilities, ice plants, and “cotton factories of the South.”38 The Principles of the Administrative Law thus begins to see the logic for a growing administrative state prompted by the need for government regulation of the markets,39 a core tenet of the emerging politics of the era.40 __________ 37

17 HARV. L. REV. at 172–173. Law of Public Service, Cambridge Tribune, vol. 36, No. 5, at 12 (Mar. 29, 1913). 39 See William J. Novak, Law and the Social Control of American Capitialism, 60 EMORY L.J. 377, 393 (2010) (noting that Wyman, along with Freund and Goodnow, is a neglected architect of the emerging regulatory state); William J. Novak, The Legal Origins of the Modern American State in LOOKING BACK AT LAW’S CENTURY 249, 268-72 (Austin Sarat et al., eds. 2002) (providing account of administrative law in the fundamental rethinking of the American nation-state following the Civil War 40 See JOHN WHITECLAY CHAMBERS II, THE TYRANNY OF CHANGE: AMERICA IN THE PROGRESSIVE ERA, 1890–1920 136–137 (1992 Second Edition) (describing the new interest in intervention in the markets prompted by mass immigration, rapid urbanization, industrialization, and the depression of the 1890s, among other forces); GABRIEL KOLKO, THE TRIUMPH OF CONSERVATISM: A REINTERPRETATION OF AMERICAN HISTORY, 1900–1916 (1963) (arguing business interest, with railroads in 38

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The treatise was one of many works devoted to understanding the law applicable to regulated industry Wyman produced in his relatively short career as an academic. Wyman graduated from Harvard Law School in 1900 and was appointed to its faculty the same year, first as a Lecturer, teaching “a wholly new half course on Administrative Law” in the fall of 1900.41 He continued as a Lecturer for two years, also teaching Surety and Mortgage, Property, Carriers and Conflicts of Law.42 Wyman was appointed Assistant Professor in 1903, and in 1908, became Professor of Law, a title he held until his resignation in 1913. During that time he also taught Contracts and Public Service Companies.43 In addition to his administrative law treatise, Wyman published a torrent of material on public regulation, trade regulation and other regulated industries, including more than seven monographs and case books between 1902 and 1911,44 as well as articles in periodicals such as the Harvard Law Review, Yale Law Journal, the Columbia Law Review, and the Green Bag. With the publication of his monograph, Control of the Market: A Legal Solution to the Trust Problem (1911), Wyman began to reach a popular audience. In 1912, the lead, supported increased government involvement and regulation of the markets). 41 Warren, supra note 11, at 471–472. 42 THE CENTENNIAL HISTORY OF THE HARVARD LAW SCHOOL, 1817–1917, 287 (1917). 43 Id. 44 See, e.g., CASES ON PUBLIC SERVICE COMPANIES: PUBLIC CARRIERS, PUBLIC WORKS, AND OTHER PUBLIC UTILITIES (1902), with his colleague Joseph Beale, CASES ON RESTRAINT OF TRADE (1903), with his colleague Jeremiah Smith, A SELECTION OF CASES ON MORTGAGES (1906), THE LAW OF RAILROAD REGULATION WITH SPECIAL REFERENCE TO AMERICAN LEGISLATION (1907), with Beale, CONTROL OF THE MARKET: A LEGAL SOLUTION TO THE TRUST PROBLEM (1911), THE SPECIAL LAW GOVERNING PUBLIC SERVICE CORPORATIONS AND ALL OTHERS ENGAGED IN PUBLIC EMPLOYMENT (1911).

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the book received a glowing review in The New York Times. “It would be hard to find a better discussion” the review reported, of a more urgent issue.45 After a dozen years of ascent as an academic, Wyman’s career at Harvard was cut short by a sequence of events resulting in this resignation in 1913. Wyman had lectured on numerous occasions taking a favorable stance to the powerful New York, New Haven & Hartford Railroad (the “New Haven”) and the Boston & Maine Railroad without disclosing that he had been on retainer from the New Haven. When these facts came to light in December, 1913, Wyman immediately resigned from Harvard, stating that if he remained connected to the institution, he may cause the college and law school an injury “without regard to the innocence of my motives.”46 The nation’s leading newspapers, including The New York Times and The Boston Daily Globe covered the resignation.47 The New Haven operated on the wrong side of history. Louis Brandeis famously led investigations into the New Haven’s business practices, ultimately resulting in convictions for political bribery, financing “independent” experts, filing misleading public reports, and misuse of funds.48 Perhaps, as Arthur Sutherland opines in his history of Harvard Law School, Wyman’s speeches on behalf of the railroads would have been beyond rebuke if he had merely pointed out his professional engagement.49 “Half a century and more later,” __________ 45

Regulating the Trusts, A Harvard Professor on the Leading Topic of the Day, The New York Times BR 115 (Mar. 3, 1912). 46 Prof. Wyman Resigns: Harvard Instructor Admitted He Lectured For Pay, The New York Times (Dec. 21, 1913). 47 Id.; Resignation Accepted, Boston Daily Globe, p. 9 (Dec. 23, 1913). 48 Edward C. Kirkland, Review of The Fall of a Railroad Empire: Brandeis and the New Haven Merger Battle by Henry Lee Stables and Alpheus T. Mason (1947), 14 LAW & CONTEMP. PROBS. 407, 408 (1949). 49 ARTHUR E. SUTHERLAND, THE LAW AT HARVARD 217 (1967).

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Sutherland muses, “one thinks of the episode with regret and sympathy.”50 Following Wyman’s unanticipated resignation from Harvard, Dean Ezra R. Thayer took over Wyman’s “most important course,” on Public Service Companies, his colleague Samuel Williston took over his contracts course, and his course on administrative law was taken over by N. Roscoe Pound.51 Coincidently, members of the faculty at Harvard had previously been in contact with Felix Frankfurter, hoping to convince him to join the faculty.52 As Justice Frankfurter later recounted, Wyman’s abrupt resignation created a vacancy, which he ended up filling.53 After Wyman’s departure from Harvard, he undertook a wide array of legal practice, serving as counsel to the New York, New Haven & Hartford Railroad, among other railroad lines and steamship companies. In his entry in the twentieth reunion notes of the Harvard Class of 1896, Wyman reproduced his publisher’s praise for his forthcoming book, noting with some detachment, “[w]hen one has been as much before the public as I have, he becomes more or less indifferent to what is said in print, finding what is written as abuse and is meant as praise just about offset each other.”54 Wyman continued to teach and write. He lectured at Chicago Law School, and in 1919 was one of the founding faculty members of the Portia Law School, charted “to furnish __________ 50

Id. Harvard Reopens Its Doors, The Cambridge Tribune, vol. 36, p. 3 (Sat. Jan. 10, 1914). 52 FELIX FRANKFURTER, FELIX FRANKFURTER REMINISCES, RECORDED TALKS WITH DR. HARLAN B. PHILLIPS 78–80 (1960). 53 Id. at 80. 54 HARVARD COLLEGE CLASS OF 1896, SECRETARY’S FIFTH REPORT 299 (June 1916). 51

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instruction in law to women only.”55 Wyman taught at Portia Law School, which today is New England Law School, until he died of heart trouble at the age of 50, on June 21, 1926. An obituary in The New York Times recognized him as “an international authority on transportation laws and public service utilities.”56 One cannot help wonder how this sequence of events— the circumstances of Wyman’s resignation, his relatively brief tenure at Harvard, and the prominence of Frankfurter as Wyman’s successor—muted the reception of Wyman’s work,57 even of his administrative law treatise penned more than a decade before his resignation. Legal developments also contributed to the neglect of Wyman’s treatise.58 By the 1920s, administrative law was concerned primarily with judicial review of agency action, ultimately adopting what Thomas Merrill calls “the appellate review model” of judicial review.59 Under this model, judicial review is based exclusively on the record before the agency, remands were issued if additional facts need to be developed, and the standard of review revolved around the law-fact distinction, __________ 55

An Act to incorporate the Portia Law School, Mass. Gen. Laws ch. 219 (June 27, 1919). 56 Bruce Wyman Dies; Rail Law Authority, The New York Times (June 22, 1926). 57 But nonetheless Wyman’s impact on the public utility law was significant. See, e g., Jim Rossi, The Common Law “Duty to Serve” and Protection of Consumers in an Age of Competitive Retail Public Utility Restructing, 51 VAND. L. REV. 1243–1266 (1989) (documenting Wyman’s role in justifying a public utility duty to serve even when it is not profitable). 58 Political developments no doubt contributed to his neglect as well. Professor Novak, for instance, argues that the achievements of Wyman, Freund, and Goodnow “have been obscured by a focus on the more visible and easily digestable achievements of muckraking and trustbusting progressives like Theodore Roosevelt.” Novak, supra note 39, at 393. 59 Merrill, supra note 5, at 941.

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with the court exercising de novo review over questions of law and deferential review over questions of fact.60 With the seeds of this model sprouting as early as 1906, as Merrill argues, Wyman’s categories for external review of agency action was superseded in a matter of little over a decade. While it is possible to trace Wyman’s influence on the development of a deferential standard of review of “jurisdictional” determinations,61 and to make connections to other canonical principles, the fact remained that common law model of review Wyman explicated rapidly faded from prominence.62 With the rapid rise of the appellate review __________ 60

See id. at 940. For instance, Wyman’s criticism of de novo judicial review even of matters pertaining to the scope of the agency’s jurisdiction found an eloquent and forceful expositor in John Dickinson. In Dickinson’s important critique of Crowell v. Benson, 285 U.S. 22 (1932), for instance, Dickinson argued that if a court were to try de novo an agency’s determination of a jurisdictional fact (such as whether individuals are “employees” within a labor act) the proceeding in the administrative tribunal “becomes infected with more than an appearance of futility.” See John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of “Constitutional” Fact, 80 U. PA. L. REV. 1055, 1059–1062 (1932) (elaborating the challenge to Crowell v. Benson, with reference to Miller v. Horton). These ideas, so important to the independence of administrative action and adjudication, find footholds in Wyman’s The Principles of the Administrative Law. In John Dickinson’s earlier Administrative Justice and the Supremacy of Law in the United States (1927), Dickinson cites Wyman’s treatise for exposition of the idea that every public officer is vested a certain “jurisdiction,” such that “[w]ithin the boundaries of this area he can act freely according to his own discretion” id. at 41, and manifests an awareness that the Miller v. Horton rule, if not confined to nuisance and public health cases involving police regulation, could invite broad re-evaluation of the decisions of administrative tribunals. See id. 108–110. But by the time of Louis Jaffe’s Judicial Control of Administrative Action (1965), Wyman had faded from recognition and acknowledgment. 62 Merrill, supra note 5, at 964–998; Jerry L. Mashaw, Rethinking Judicial Review of Administrative Action: A Nineteenth Century Perspective, 32 61

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model, Wyman’s category of the internal law of administration faded from discussion, and with it, the most significant intellectual contribution of his treatise. The promise of Wyman’s treatise for today is the recovery of this, the “real subject” of administrative law. CARDOZO L. REV. 2241, 2245 (2011). The ascendance of the appellate review model, for better or worse, invited courts to substitute their judgment for the agency over a broader range of issues. Mashaw, supra, at 2249; Merrill, supra note 5, at 1002.