The CHAIRMAN. Just there: Is it proposed to have the court make an examination to determine whether or not the record, the structure of the record and the action of the agency in making the record, is in itself a fair thing to the person who has to make the determination? Mr. MCFARLAND. It is. That is one of the categories of review, I think, in all these bills.

The CHAIRMAN. Then when you get into review, how does the court weigh the evidence in reference to the determination?

Mr. MCFARLAND. I assume you are not asking me as to the mental processes of the court.

The CHAIRMAN. No, sir; I would not like to do that. I would not like to ask anybody to try to find the mental processes of some of our courts.

Mr. MCFARLAND. The standard rule, of course, with respect to the review of administrative agencies is the review by the district court or the circuit court of appeals of whether or not there was substantial evidence to support what has been done.

Mr. WALTER. Now, there are two schools of thought. On the one hand, you have those who would permit a decision of an agency to stand where it is based on evidence, maybe evidence that is a mere scintilla of evidence; on the other hand, there are those who would have the decision given the same weight as is given that of an examiner in chancery.

Mr. CRAVENS. And the third

Mr. WALTER. Oh, no; they are the two positions.

Mr. CRAVENS. There is the third position that we give the review court the right itself to weigh the evidence and reach an independent conclusion.

Mr. WALTER. That follows necessarily.

Mr. MCFARLAND. The word "substantial" is a perfectly good word. If people do not give it its due weight, that is their fault. I do not think you can improve on that language.

The other rule that is so often discussed is the preponderance-ofevidence rule, or the weight-of-evidence rule. But the difficulty there is that it would cause about as much difficulty as help. Suppose you have the preponderance-of-evidence rule. As far as we can make out, that means weight of the evidence, the number of

The CHAIRMAN. Not the number of witnesses.

Mr. MCFARLAND. It does not mean the number in the narrow sense. The CHAIRMAN. In Texas, where I used to practice, we always argued that way.

Mr. MCFARLAND. I do not see what you can possibly gain.

The CHAIRMAN. Well, is not that the function of the court in examining with reference to the evidence; that is, to determine which way does the scale break when they weigh the evidence?

Mr. MCFARLAND. To be sure, it is the function of the trial court to weigh the evidence, because it has to make the decision; but any réviewing court has a different problem.

Mr. GWYNNE. You could not substitute his opinion for the opinion of the first trial court.

Mr. MCFARLAND. Naturally.

Mr. CRAVENS. I think what we are trying to find out is, in your judg

to the extent of indicating to the lawyer or businessman or farmer or laborer who may be involved that his rights of review are of such and such a kind; but we do not believe the principle of review or the extent of review can or should be greatly altered. We think that the basic exception of administrative discretion should be preserved, must be preserved. We believe that about all the statute should or could do would be to state the form of action, the type of acts that are reviewable in accordance with the present law, the authority of the courts to grant temporary relief so that review may be useful, but that the scope of review should be as it now is.

Mr. WALTER. You say "as it now is." Frankly, I do not know what it now is; and I do not know whether the rule as laid down in the Consolidated Edison case is the law, or what the law is. I am not saying that because the Supreme Court apparently changes its mind daily, but what is the rule?

Mr. MCFARLAND. Well, there are several different aspects of review. Most people think the substantial evidence rule is the only rule that is important. That is only one of the several aspects of the rule on review.

The CHAIRMAN. I am going to have to go directly and you are going to have to go directly, too, but could you indicate to the committee the judgment of you and your associates as to what would be reviewable by the courts under the provisions of this bill?

Mr. MCFARLAND. What would be reviewed?

The CHAIRMAN. That is right; what would be reviewed. And it has been suggested that I add to my query the extent of review. For instance, here is an individual or business that has gone through the administrative mill and is dissatisfied with what has happened. He believes the determination in his matter was against the facts and against the law, and you have this record of the determination by the investigator and possibly some supplementary evidence. Now, when the court sits in judgment, is the court to be limited more than the courts ordinarily are limited when they are determining the facts of a disputed situation?

Maybe I could illustrate what. I am talking about. A great deal of public complaint is that when people finally reach the courts the courts look around to see if there is any sort of evidence to support the determination of the agency and, if it does find some evidence to support the determination of the agency, the determination of the agency is upheld. A good many people believe the courts ought to consider the whole field and weight of the evidence in determining the question in controversy, if it is reviewable.

Now, how far toward the latter or how close to the former do we propose to go in this regard?

Mr. MCFARLAND. I assume you are thinking of a situation in which the review takes place on the administrative record; that is, the agency has heard evidence, has heard witnesses, received the documents, and made up the record. The court's review is therefore confined to that record. There are other cases, of course, where the agency does not make a record and the court tries the thing de novo. We are not speaking of the latter.

The CHAIRMAN. Not at the moment; no.

Mr. MCFARLAND. We are speaking of the case where the agency has

The CHAIRMAN. Just there: Is it proposed to have the court make an examination to determine whether or not the record, the structure of the record and the action of the agency in making the record, is in itself a fair thing to the person who has to make the determination?

Mr. MCFARLAND. It is. That is one of the categories of review, I think, in all these bills.

The CHAIRMAN. Then when you get into review, how does the court weigh the evidence in reference to the determination?

Mr. MCFARLAND. I assume you are not asking me as to the mental processes of the court.

The CHAIRMAN. No, sir; I would not like to do that. I would not like to ask anybody to try to find the mental processes of some of our

courts.

Mr. MCFARLAND. The standard rule, of course, with respect to the review of administrative agencies is the review by the district court or the circuit court of appeals of whether or not there was substantial evidence to support what has been done.

Mr. WALTER. Now, there are two schools of thought. On the one hand, you have those who would permit a decision of an agency to stand where it is based on evidence, maybe evidence that is a mere scintilla of evidence; on the other hand, there are those who would have the decision given the same weight as is given that of an examiner in chancery.

Mr. CRAVENS. And the third

Mr. WALTER. Oh, no; they are the two positions.

Mr. CRAVENS. There is the third position that we give the review court the right itself to weigh the evidence and reach an independent conclusion.

Mr. WALTER. That follows necessarily.

Mr. MCFARLAND. The word "substantial" is a perfectly good word. If people do not give it its due weight, that is their fault. I do not think you can improve on that language.

The other rule that is so often discussed is the preponderance-ofevidence rule, or the weight-of-evidence rule. But the difficulty there is that it would cause about as much difficulty as help. Suppose you have the preponderance-of-evidence rule. As far as we can make out, that means weight of the evidence, the number of

The CHAIRMAN. Not the number of witnesses.

Mr. MCFARLAND. It does not mean the number in the narrow sense. The CHAIRMAN. In Texas, where I used to practice, we always argued that way.

Mr. MCFARLAND. I do not see what you can possibly gain.

The CHAIRMAN. Well, is not that the function of the court in examining with reference to the evidence; that is, to determine which way does the scale break when they weigh the evidence?

Mr. MCFARLAND. To be sure, it is the function of the trial court to weigh the evidence, because it has to make the decision; but any réviewing court has a different problem.

Mr. GWYNNE. You could not substitute his opinion for the opinion of the first trial court.

Mr. MCFARLAND. Naturally.

Mr. CRAVENS. I think what we are trying to find out is, in your judg

to the extent of indicating to the lawyer or businessman or farmer or laborer who may be involved that his rights of review are of such and such a kind; but we do not believe the principle of review or the extent of review can or should be greatly altered. We think that the basic exception of administrative discretion should be preserved, must be preserved. We believe that about all the statute should or could do would be to state the form of action, the type of acts that are reviewable in accordance with the present law, the authority of the courts to grant temporary relief so that review may be useful, but that the scope of review should be as it now is.

Mr. WALTER. You say "as it now is." Frankly, I do not know what it now is; and I do not know whether the rule as laid down in the Consolidated Edison case is the law, or what the law is. I am not saying that because the Supreme Court apparently changes its mind daily, but what is the rule?

Mr. MCFARLAND. Well, there are several different aspects of review. Most people think the substantial evidence rule is the only rule that is important. That is only one of the several aspects of the rule on review.

The CHAIRMAN. I am going to have to go directly and you are going to have to go directly, too, but could you indicate to the committee the judgment of you and your associates as to what would be reviewable by the courts under the provisions of this bill?

Mr. MCFARLAND. What would be reviewed?

The CHAIRMAN. That is right; what would be reviewed. And it has been suggested that I add to my query the extent of review. For instance, here is an individual or business that has gone through the administrative mill and is dissatisfied with what has happened. He believes the determination in his matter was against the facts and against the law, and you have this record of the determination by the investigator and possibly some supplementary evidence. Now, when the court sits in judgment, is the court to be limited more than the courts ordinarily are limited when they are determining the facts of a disputed situation?

Maybe I could illustrate what I am talking about. A great deal of public complaint is that when people finally reach the courts the courts look around to see if there is any sort of evidence to support the determination of the agency and, if it does find some evidence to support the determination of the agency, the determination of the agency is upheld. A good many people believe the courts ought to consider the whole field and weight of the evidence in determining the question in controversy, if it is reviewable.

Now, how far toward the latter or how close to the former do we propose to go in this regard?

Mr. MCFARLAND. I assume you are thinking of a situation in which the review takes place on the administrative record; that is, the agency has heard evidence, has heard witnesses, received the documents, and made up the record. The court's review is therefore confined to that record. There are other cases, of course, where the agency does not make a record and the court tries the thing de novo. We are not speaking of the latter.

The CHAIRMAN. Not at the moment; no.

Mr. MCFARLAND. We are speaking of the case where the agency has

The CHAIRMAN. Just there: Is it proposed to have the court make an examination to determine whether or not the record, the structure of the record and the action of the agency in making the record, is in itself a fair thing to the person who has to make the determination? Mr. MCFARLAND. It is. That is one of the categories of review, I think, in all these bills.

The CHAIRMAN. Then when you get into review, how does the court weigh the evidence in reference to the determination?

Mr. MCFARLAND. I assume you are not asking me as to the mental processes of the court.

The CHAIRMAN. No, sir; I would not like to do that. I would not like to ask anybody to try to find the mental processes of some of our

courts.

Mr. MCFARLAND. The standard rule, of course, with respect to the review of administrative agencies is the review by the district court or the circuit court of appeals of whether or not there was substantial evidence to support what has been done.

Mr. WALTER. Now, there are two schools of thought. On the one hand, you have those who would permit a decision of an agency to stand where it is based on evidence, maybe evidence that is a mere scintilla of evidence; on the other hand, there are those who would have the decision given the same weight as is given that of an examiner in chancery.

Mr. CRAVENS. And the third

Mr. WALTER. Oh, no; they are the two positions.

Mr. CRAVENS. There is the third position that we give the review court the right itself to weigh the evidence and reach an independent conclusion.

Mr. WALTER. That follows necessarily.

Mr. MCFARLAND. The word "substantial" is a perfectly good word. If people do not give it its due weight, that is their fault. I do not think you can improve on that language.

The other rule that is so often discussed is the preponderance-ofevidence rule, or the weight-of-evidence rule. But the difficulty there is that it would cause about as much difficulty as help. Suppose you have the preponderance-of-evidence rule. As far as we can make out, that means weight of the evidence, the number of

The CHAIRMAN. Not the number of witnesses.

Mr. MCFARLAND. It does not mean the number in the narrow sense. The CHAIRMAN. In Texas, where I used to practice, we always argued that way.

Mr. MCFARLAND. I do not see what you can possibly gain.

The CHAIRMAN. Well, is not that the function of the court in examining with reference to the evidence; that is, to determine which way does the scale break when they weigh the evidence?

Mr. MCFARLAND. To be sure, it is the function of the trial court to weigh the evidence, because it has to make the decision; but any réviewing court has a different problem.

Mr. GWYNNE. You could not substitute his opinion for the opinion of the first trial court.

Mr. MCFARLAND. Naturally.

Mr. CRAVENS. I think what we are trying to find out is, in your judg