Frequently they are quite the contrary. It is very difficult sometimes to argue with experts, espécially on some subjects, because they are too opinionated. But expertness is not in itself a judicial trait. These men are appointed from time to time. The expertness if any is in the staff. The Food and Drug Administration is full of experts. They have doctors, pharmacologists, toxicologists, bacteriologists, food chemists, pharmaceutical chemists, and laboratory technicians, but no one has ever suggested because of that that they should try the case. They prepare the case. When the cases are tried, of course, they have been prepared by experts and experts testify, and their experts testify and outside experts testify, and that is all proper and the Government is richer for that investment, but no one suggests that the Food and Drug Administration experts should try the case which they themselves allege and prosecute; and the same should be true here. Let the Federal Trade Commission's experts prepare the case and present it in the courts.

I am going to bring this down to a close. I do want to read you something that sums up pretty well what the situation is here.

I mentioned a while ago that we are up against an institutional decision, and that is ever so true. You are battling an organization. The man opposite you is the trial attorney. The examiner is sitting there. Or maybe you are before the Commission. But you know at all times that there is a great abstruse sort of an organization that you are up against a machine. I cannot express it any better than Dean Acheson expressed it and I want to quote Dean Acheson in appearing before a committee of the Congress some years ago. You may remember that he was chairman of the Attorney General's committee and here is what he said-institutional decision is a grand term for this-I quote here from Professor Davis' article. That is the best way I can express it. Dean Acheson said this:

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The agency is one great obscure organization with which the citizen has to deal. It is absolutely amorphous. He pokes it in one place and it comes out another. No one seems to have specific authority. There is someone called the Commission, the authority; a metaphysical omniscient brooding thing which sort of floats around in the air and is not a human being. That is what is baffling. There is no (sic) idea that Mr. A. heard the case and then it goes into this great building and mills around and comes out with a commissioner's name on it but what happens in between is a mystery. That is what bothers people. * * * I myself have felt baffled in presenting cases because I knew that the man who was listening to me argue was not the man who was going to decide the case and what I wanted to do was to get my hooks into the fellow who was going to decide the case.

That describes the predicament of the trial lawyer before a Commission proceeding better than any words I could find.

I am going to bring this to a close, Mr. Chairman. All I have to say to you is this, that the trial of a case by Commission procedure will make of any trial lawyer a convert to the O'Hara bill. That is the simpliest way I can put it. And, if the American Bar could see at first hand this method of litigating specific issues of fact I think you gentlemen would have petitions galore here for a change.

May I just say this word, this one word, although I may have spoken vigorously, I would like for you to understand that I have no personal animosity in this matter. I have friends on the Commission, on all levels of the Commission, and I have spoken without regard to any personality. I have spoken to the system. Personalities undoubtedly

influence it at spots. But I am not here debating personalities nor do I have one word of criticism of any one person in the Commission. But I am here criticizing, as I am trying to do, the procedure which is followed in litigating these cases.

The CHAIRMAN. Are there any questions?

Mr. HALE. Mr. Chairman.

The CHAIRMAN. Mr. Hale.

Mr. HALE. Yes; on the question of this travel. I do not quite understand what the necessities were in each case. Did you have to go to. these remote points to take the testimony of your own experts, or did the Federal Trade Commission notice you to take depositions?

Mr. HOGE. Congressman Hale, I have not started taking any testimony at all. This is still the Commission's case and I went there because the Commission set cases at those points.

Mr. HALE. What do you mean set cases?

Mr. HOGE. They noticed me to be present if I cared to cross-examine. They noticed me that hearings would be held there at which they would examine witnesses at that point.

Mr. HALE. In all proceedings?

Mr. HOGE. Yes, sir

Mr. HALE. They just pick witnesses here, there, and everywhere all over the country?

Mr. HOGE. That is correct, sir.

Mr. HALE. And you have to ride around after them?

Mr. HOGE. That is correct, sir.

Mr. HALE. Speaking in behalf of my colleague, Mr. Ellsworth, it seems to me that they have slighted the Pacific Northwest.

Mr. HOGE. Well, I have not given up hope yet. The Bar Association is going to be in Seattle in September.

Mr. ELLSWORTH. I will say in that respect we are not being slighted in the Pacific Northwest.

Mr. HALE. Will you put in a word for my own State of Maine also? Mr. HOGE. I wish we might look to that, Congressman, instead of Dallas for this July.

The CHAIRMAN. Atlantic City, N. J., is also a delightful place to visit.

(After informal discussion off the record the following proceedings were had :)

The CHAIRMAN. I may say in that connection (discussion off the record), that the American Bar Association official views in that respect are very largely the views of their former president, Arthur Vanderbilt, who is now the chief justice of the highest court of New Jersey. This question of administrative law is one which he has given a great deal of study and attention. I am inclined to think that the forwardlooking program, so far as the American Bar Association is concerned, are largely the result of his influence and his study of the matter, and his prominence in the American Bar Association. He also was dean, until he took this judicial position, of New York University Law School.

Mr. HOGE. Yes, sir. Another distinguished New Jersey lawyer, Mr. Sylvester Smith, has been interested and is still very much interested and has contributed articles to the American Bar Association Journal and has been most interested in and I think he either is or has been

secretary, or chairman of the section on administrative law of the bar association.

But, Congressman, just let me say this to you in connection with our thinking on this, that I think we ought to try to separate a little what we have. I tried to go into administrative law. There are places for administrative law, so-called, which are quite appropriate, but it is unfair to raise up the subject generally without any definitions and applications one way or the other to any problem.

Mr. ELLSWORTH. Have yon any testimony as to what would seem to be to me obvious as a criticism of this bill, a statement that it would bog the courts down with cases? In other words, create too much work?

Mr. HOGE. Congressman, I mean no disrespect, but to me that is nothing but nonsense.

Mr. ELLSWORTH. I have not heard it in connection with this.

Mr. HOGE. In my statement, probably before you were here, I showed you that the Food and Drug Administration's cases were disposed of by the courts and that the courts disposed of over 3,000 such cases in the year 1946. The Commission disposed of only 123. So, it would not burden the courts.

The CHAIRMAN. Those 3000 cases were disposed of through the courts?

Mr. HOGE. Through the courts.

Mr. ELLSWORTH. They were brought by the Food and Drug Administration?

Mr. HOGE. The Food and Drug Administration is the investigator and the complainant and the preparer of the case. The actual trial is conducted by the district attorneys assisted by the solicitors from the Administration.

Mr. ELLSWORTH. Now why-maybe this is not a proper question— why does not the Federal Trade Commission use that same proceeding on rules and regulations or matters under their law?

Mr. HOGE. Well, their law permits them to try the cases the way they are trying them, sir, and I suppose they would prefer to take advantage of what their law permits them to do.

Mr. ELLSWORTH. You mean that the Food and Drug Administration cannot do that under their law?

Mr. HOGE. No; the Food and Drug Act has no such provision; no, sir.

Mr. ELLSWORTH. That is all.

Mr. HALE. May I ask one more question?

The CHAIRMAN. In further substantiation of the witness' statement that the argument is nonsense, he also pointed out that there are nearly 100 district courts, or judges, and that it would not result in the withholding of justice because of the number of cases involved.

Mr. ELLSWORTH. That is the reason I raised the question. It is an argument common to all bills that we have on the floor that have any such implications as this and I have never seen the argument actually borne out with facts, or evidence given in debate, but it comes up and that is why I raised the question here.

The CHAIRMAN. The witness has in his statement made some reference to the subject.

Mr. HOGE. I know in my practice of no Federal court that is far behind in its docket.

Mr. ELLSWORTH. I may say-maybe some of you may have heard it at a recent dinner of the administrative law section of the Washington, D. C., bar, where the general counsel for the National Labor Relations Board made a speech. As I recall, he said when the Taft-Hartley bill was under consideration one of the greatest arguments against it was that it would swamp the courts with cases but the speaker stated that only 15 cases of that kind had been handled by the Board since the act passed.

Mr. HOGE. Yes sir; Congressman. Just as a practical matter, court practice-I think that the lawyers here would bear me out-there are so many cases that move in the court channels, where the lawyers find ways of reaching settlement before they get to trial. They may reach it before they bring the complaint. But, after the complaint is filed, before trial, there is the pretrial conference with the judge; motions for summary judgment and motions on pleadings and motions to dismiss, and there are so many ways of thinning down the actual trial docket that only a fraction of the cases that are brought in the courts are actually tried.

Mr. O'HARA. Speaking of the Taft-Hartley bill, Mr. Hoge, in that instance the Congress insisted upon separating the quasi-judicial body and its prosecutor and making the prosecutor absolutely separate and apart from the body of the National Labor Relations Board, or whatever the proper term is.

Mr. HOGE. I am glad that you mentioned that, because that was done by this Congress-first session of this Congress-I believe, after passage of the Administrative Procedure Act and recognition of the fact that the Administrative Procedure Act had not solved the difficulties of the combination.

The CHAIRMAN. I think generally speaking that it would be helpful if we had some opportunity to have Dean Vanderbilt before us as a witness. We know that he is strongly in favor of the Administrative Procedure Act. On the other hand, he has been a man of large experience. He has been a trial lawyer. He has had experiences different from those that a theorist might have, and in the light of what has developed since the adoption of the Administrative Procedure Act, it seems to me that his opinion might be helpful. I know that Judge Vanderbilt is a man of such wide experience that any opinion that he might give would be based upon what he believed to be the requirements of practice rather than the theory of the subject.

Mr. HOGE. I would subscribe to that, certainly.

Mr. HALE. I just want to ask one or two more questions on this question of travel.

Now, for example, in this case when you went to Dallas, Tex., some witness in behalf of the Government testified to some alleged abuse by your client; is that right?

Mr. HOGE. Here is the way they got those witnesses, Congressman. They searched around and where they would find that someone had written an article that said something in it that supported the view that they took they would go out and get him to testify for them. Mr. HALE. Testify as an expert?

Mr. HOGE. Yes, sir.

Mr. HALE. That is, testify as to some particular thing that your client did?

Mr. HOGE. No; no; no.

Mr. HALE. Testify on a question of pure theory?

Mr. HOGE. On the theory that if you took too much bromide, without specifying how much, you would have a mental derangement. Mr. HALE. And then found someone in Los Angeles who had had the same opinion?

Mr. HOGE. They found somebody in Los Angeles who had the same opinion. The man there was a gynecologist. He was a specialist in gynecology but when he was in law school he had worked with some of his seniors on a paper in which that statement was made.

Mr. HALE. You mean in medical school?

Mr. HOGE. He was a student in medical school and he worked up some theories on paper and years later after he had been admitted to practice, they found him over in Los Angeles practicing as a gynecologist and they went out and took his testimony as to what had been said in that paper.

The man in Dallas, Tex., was an externe. I do not know whether you gentlemen know what an externe is. An externe is a young man who works around a sanitarium or hospital in afternoons after school. So when this young man was an externe in Dallas in a mental sanitarium he did some of the work on a paper which his seniors published and so we went to Dallas, Tex., and took the testimony. The seniors had been good enough to put his name on the paper, so that it appeared in the literature that he was an expert on the subject and we went to Dallas and got his testimony.

Mr. O'HARA. What is a gynecologist?

Mr. HOGE. Well, I do not know whether I can find the choice words for it. He was a specialist in that field. He was an endocrinologist, and I learned by cross-examination that he treated the endocrine gland and that that was a treatment of the ovarian function. I did not have the nerve to ask him how much further he specialized.

Mr. HALE. Were all of these deponents medical specialists of one kind or another?

Mr. HOGE. No, sir; absolutely not. There have been-I do not want to be held to actual memory, but there have been a few well-qualified men. The rest have been distinctly poorly qualified.

Mr. HALE. I mean they were experts or purported experts?
Mr. HOGE. They were offered as experts; yes, sir.

Mr. O'HARA. I was getting to that point. A gynecologist certainly would not be an expert on the effect of bromides.

Mr. HOGE. He does not use drugs at all. He treats the glands. Mr. ELLSWORTH. Another question. As I gather from your discussion of these cases the point involved is whether or not people had been harmed by reason of the fact that certain wording had not appeared in their advertisements.

Mr. HOGE. No, sir; you have not understood it rightly. The question is, the charges that some people are likely to get mental derangements if they should use the drug to excess.

Mr. HALE. But in no case has there been any deponent who testified that he had been damaged by the use of the drug? Mr. HOGE. Not a single one.

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