Jury Review of Administrative Action
Any scholar of modern administrative law surely knows that there is an error in the title of my paper. Federal administrative law in our era provides for judicial review— not jury review—of administration action. More than sixty years ago, the Supreme Court, in Cox v. United States, definitively rejected the notion that the jury had any role—either under the Constitution or under “settled federal administrative practice”— in “reviewing the action of an administrative body” or in “pass[ing] on the validity of an administrative order.” In the quarter century after the Supreme Court’s decision in Cox, the two leading commentators in the field—Kenneth Culp Davis and Louis Jaffe—both recognized and accepted Cox as standing for the general proposition that, even in actions otherwise being tried before a jury where the invalidity of an administrative order is a proper defense, the court should “withhold[] from the jury the question of validity of the order.” Indeed, the practice of forbidding any jury review of administrative action is so settled that the most prominent current treatises in the field do not even bother mentioning Cox.