The Prehistory of ACUS, Part 4: The Judicial Conference Looks at Administrative Procedure

This post is the fourth in a nine-part series about the historical antecedents of ACUS.

In the summer of 1949, a Special Subcommittee of the House Judiciary Committee asked the Judicial Conference of the United States to “endeavor to develop some time-saving procedures, . . . especially in the antitrust laws,” but also in cases before the regulatory agencies.

At its meeting that month, the Judicial Conference designated a ten-member Committee to consider “means whereby the proceedings of regulatory agencies may be shaped both to satisfy the needs of the parties and to facilitate the reviewing function of the courts.” Chief Justice Fred Vinson appointed Judge E. Barrett Prettyman of the DC Circuit as its Chair.

E. Barrett Prettyman Federal Courthouse (Library of Congress/Carol M. Highsmith).

The ten-member Committee soon became a twelve-member Advisory Committee on Procedure Before Administrative Agencies helmed by Judge Prettyman but made up of “persons more knowledgeable in the field.”

In 1951, the Committee returned its report, writing:

The procedure of the administrative agencies, pursuant to acts of Congress, is primarily a matter for the executive branch of the government. In the final analysis, it would be inappropriate and impractical for the Judicial Conference to attempt to formulate and promulgate uniform rules for the guidance of the Federal regulatory agencies. The regulatory agencies themselves must solve this problem. The solution may best be accomplished by the cooperation of all agencies involved; in fact, a cooperative approach with mutual exchange of experience and suggestions, seems imperative for the most efficient function of the administrative agencies. With such an approach to this problem in mind, your committee’s primary recommendation is that the Judicial Conference suggest to the President that he call, or cause to be called, a Conference of Representatives of the Administrative Agencies having adjudicatory and substantial rulemaking functions, for the purpose of devising ways and means for achieving the objectives with which this committee is concerned: that is, of preventing unnecessary delay, expense, and volume of records in administrative proceedings and of improving generally the efficiency and economy of the administrative process, and that particular attention be given to each factor of the problems herein outlined.

The Judicial Conference approved the recommendation, adding that the President may wish to include members of the judiciary and the bar alongside agency representatives.

Next week: Part 5, President Eisenhower Calls for a Conference on Administrative Procedure.