The Administrative Law Legacy of Kenneth Culp Davis

Kenneth Culp Davis, one of the twentieth century's outstanding authorities on administrative law, passed away in September 2003. This commemorative essay surveys his manifold contributions to the field. The concept that is most often associated with his name, the distinction between adjudicative facts and legislative facts, is still a crucial reference point in analyses of the right to be heard in judicial or administrative proceedings. His influence has been felt in a number of other areas as well.

During the past few decades, for example, administrative adjudication has become more streamlined, rulemaking has become more widely employed, and obstacles to obtaining judicial review, such as standing and ripeness defenses, have been relaxed. Davis played a large role in promoting each of these developments. Some of his other initiatives, such as his efforts to tame the administration of "discretionary justice," have been less successful. The essay concludes with a suggestion that Davis's ideas, influential as they were, might have had even greater impact if the legal system had not, in recent times, veered away from the kind of open-ended judicial common lawmaking that much of his work presupposed.