Administrative Practice: A Primer For Effective Advocacy

This paper provides a brief historical overview of the development of administrative agencies, suggests a series of steps which may be used to approach administrative issues, and examines the role of litigation techniques in administrative practice. The paper discusses administrative practice in three contexts: rulemaking, informal agency action, and formal adjudication. The paper compares administrative practice with litigation and explains why understanding litigation process and procedures can provide a critical assist to the administrative process.

I. GENERAL BACKGROUND

A. Early History

Federal administrative agencies date back to this country's earliest days. The first Congress established three administrative agencies, including one for the payment of benefits to Revolutionary War veterans.1 The Patent Office was created in 1790, the Office of Indian Affairs in 1796 and the General Land Office in 1812. The Congress created eight more agencies before the Civil War.2

Further resort to administrative agencies took place on the dawn of the progressive era with the creation of independent administrative agencies such as the Interstate Commerce Commission, the Federal Reserve System and the Federal Trade Commission. The increased use of administrative agencies raised a number of questions about the constitutionality of these agencies. Early c