Allocating Power Between Agencies and Courts: The Legacy of Justice Brandeis

The discipline of administrative law has long been characterized by a preoccupation with the task of striking the appropriate balance between judicial and administrative activity. Justice Louis D. Brandeis, whose career on the Supreme Court was contemporaneous with the rise of the administrative agency to a position of institutional prominence, played a preeminent role both in fixing the focus of administrative law on agency-court interaction and in formulating an analytical approach for the coordination of that interaction. In this Article, Professor White reviews and analyzes Justice Brandeis' contributions to the development of a pragmatic theory for the allocation of power between courts and agencies. He concludes with a discussion of how those contributions have been variously endorsed, modified, or discarded by contemporary courts and commentators.