The Substitution of Rule for Discretion in Public Law1

Ernst Freund

American Political Science Review, 1915, vol. 9, issue 4, 666-676

Abstract: The course of recent legislation for the regulation of commerce, trade and industry has created the impression that there exists a tendency in our law to transfer powers of determination from the courts which act according to fixed principles to administrative commissions or officials vested with large discretionary powers.Considering that normally the progress of law should be away from discretion toward definite rule, such a tendency should receive the most careful examination. The first inquiry should however be whether and to what extent the impression is substantiated by facts.The advent of the new administrative power is in the public mind associated chiefly with public utility and industrial commissions first created for the control of railroads, for the earlier powers over banks and insurance companies, as well as those of medical and other licensing boards, attracted relatively little attention or comment.

Date: 1915
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