Removal of Judicial Functions from Federal Trade Commission to a Trade Court: A Reply to Mr. Kintner

Not long ago, Attorney General Rogers stated that, “The entire field of administrative law and of Government regulation may require a searching re-examination of some of the premises on which we have based our conclusions.” What lifts this utterance to the level of “man bites dog” is that the Attorney General almost alone among federal administrators does not insist that the administrative process, in major outline, is forever frozen. The orthodox administrative view is exemplified by Mr. Earl W. Kintner’s (formerly General Counsel and now Chairman of the Federal Trade Commission) numerous strictures upon the American Bar Association proposal that the judicial functions of the Federal Trade Commission be transferred to a Trade Court. To his alarmed gaze, this “caps” “The Current Ordeal of the Administrative Process.” The ABA proposal grew out of a “searching re-examination,” earlier undertaken by the Hoover Commission. “Without doubt,” said Professor Jaffe in 1956, “the most acute problem of our administrative system is created by the so-called combination of prosecuting and adjudicating functions within one agency.” It remains disquieting that the prosecutor who files a charge of law violation should be permitted to adjudicate the charge.