Gale Encyclopedia Of American Law 3Rd Edition Volume 1 P12 potx

artificial structures or buildings on it. A
landowner can enforce the right to lateral
support in court. A lawsuit for the removal of
lateral support accrues when the damage occurs,
not when the excavation is done.
An adjoining landowner who excavates
close to his or her boun dary line has a duty to
prevent injury arising from the removal of the
lateral support of a neighbor’s property. Because
the right to lateral support is considered an
absolute
PROPERTY RIGHT, an adjoining landowner
will be liable for damages to the natural
condition of the land regardless of whether or
not he or she acted negligently.
When, however, a landowner has erected
buildings on the land, his or her right to recover
for deprivation of the lateral support is differ-
ent. Because additional weight has been placed
on the land, thus increasing the burden on the
lateral support, the landowner can be award ed
damages for injuries to the building caused by
excavation only if his or her neighbor has been
negligent. Sometimes local ordinances require
that persons planning to excavate on their own
property give notice to neighboring adjoining
landowners so that neighbors may take preven-
tive measures to protect their property. The
failure of landowners who receive notice to take
precautions does not necessarily absolve the
excavator of

LIABILITY for NEGLIGENCE. If, howev-
er, the excavator does not notify neighboring
landowners, courts have treated this failure as
negligence, and the excavator will be responsible
for damages even though the excavating itself
was not done negligently.
When evidence establishes that an adjoining
landowner has removed the lateral support of a
neighbor’s land, the neighbor will recover
damages in the amount of either the cost of
restoring the property to its value before its
support was removed or the cost of restoring
the land to its former condition, whichever is
less. An injunction prohibiting further excava-
tion may be granted if it poses a clear danger to
contiguous lands and if it will cause irreparable
damage.
Subjacent Support A landowner is entitled to
subjacent support, the absolute right to have
one’s land supported from beneath its surface.
If one person owns the surface of the land while
another owns the subjacent surface, the owner
of the surface is entitled to have it remain in its
natural conditio n without subsidence caused by
the subsurface owner’s withdrawal of subjacent
materials. An adjoining landowner w ho, during
excavation, taps a subterranean stream, causing
the soil of the neighbor’s land to subside, will be
liable for any injuries that result. The surface
owner’s right to sue the subsurface owner for

deprivation of subjacent support arises when
the land actually subsides, not when the
excavation is made.
The constr uction of buildings on the surface
of the land does not lessen a person’s right to
subjacent support. It does, however, change the
circumstances under which that person may
recover for the removal of subsurface support.
If such buildings are damaged, their owner
must show that the removal of the support was
done negligently.
Light, Air, and View No landowner has an
absolute right to light and air from or passing
over adjoining property or to a view over
adjoining lands. Zoning laws imposed by
localities may, however, require that any
construction undertaken by an individual not
deprive an adjoining landowner of adequate air,
light, and view. Similarly, many agreements
such as restrictive covenants in deeds or
easements affect a person’s duty toward his or
her next-door neighbor’s right to air, light, and
view. In the absence of zoning laws or
agreements, therefore, a person may build on
his or her own property without regard to the
fact that he or she is depriving the next-door
neighbor of the light, air, and view that was
enjoyed before the building was erected. An
exception is a structure that blocks air, light,
and view for the sole purpose of injuring a

neighbor—such as a “spite” fence—and which
is of no
BENEFICIAL USE or pleasure to the owner.
Courts will generally not permit such structures.
Encroachments An
ENCROACHMENT is an intru-
sion upon the property of another without
that person’s permission. No person is legally
entitled to construct buildings or other struc-
tures so that any part, regardless of size, extends
beyond that person’s property line and intrudes
upon adjoining lands. An encroaching owner
can be required to remove the eaves of a
building that overhang an adjoining lot. If
he or she refuses to do so, the owner of
the contiguous lot may personally remove as
much of the encroachment that deprives him or
her of the complete enjoyment of his or her
land, but if negligent, he or she will be liable for
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
98 ADJOINING LANDOWNERS
damages. Should any expenses be incurred in
the removal of the encroachment from the
adjoining land, the person whose property was
encroached upon can sue the owner to recover
damages.
The person whose property has been
encroached upon may sue the encroacher under
either the theory of nuisance or the theory of
TRESPASS to obtain monetary damages, or instead,

may seek an injunction against continuation of
the encroachment or to force its removal.
Trees and Shrubs Landowners should not
permit trees or hedges on their property to
invade the rights of adjoining landowners. If an
individual knows, for example, that a tree on his
or her property is decayed and may fall and
damage the property of another, that individual
has a duty to eliminate the danger. A tree on the
boundary line of contiguous land belongs to both
adjoining landowners. Each owner has an interest
identical with the portion standing on his or her
land. Each can sever intruding tree branches or
roots at the boundary line of his or her property,
whether or not any injuries have been sustained
by the intrusion, but reasonable care must be
exercised so as not to kill the entire tree.
FURTHER READINGS
Barlow, John R. II, and Voncannon Barlow. 1997. Skelton on
the Legal Elements of Boundaries & Adjacent Properties
2d ed. New York: LexisNexis.
Jex, Thomas D. 1998. “Alcaraz v. Vece: If You Mow or
Water Your Next-Door-Neighbor’s Yard, You Might Be
Liable for Anyone Injured There.” BYU Journal of
Public Law 13 (winter).
Merrill, Karen R. 2002. Public Lands and Political Meaning:
Ranchers, the Government, and the Property between
Them. Berkeley: Univ. of California Press.
Perin, Constance. 1977. Everything in Its Place: Social Order
and Land Use in America. Princeton, NJ: Princeton

Univ. Press.
Stephens, Ana Boswell. 1999. “Prospecting for Oil at the
Court House: Recovery for Drainage Caused by
Secondary Recovery Operations.” Alabama Law Review
50 (winter).
CROSS REFERENCE
Land-Use Control.
ADJOURNED TERM
A continuance of a previous or regular court
session that results from postponement.
When a term is adjourned, it is actually
prolonged due to a temporary putting off of the
business being conducted.
ADJOURNMENT
A putting off or postponing of proceedings; an
ending or dismissal of further business by a co urt,
legislature, or public official—either temporarily
or permanently.
If an adjournment is final, it is said to be
SINE DIE, “without day” or without a time fixed
to resume the work. An adjournment is
different from a
RECESS, which is only a short
break in proceedings.
In legislatures, adjournment officially marks
the end of a regular session. Both state and
federal lawmakers vote to determine when to
adjourn. The exact timing depends upon multi-
ple factors such as work load, election schedules,
and the level of comity among lawmakers.

Because a session can end with unfinished
legislative business, adjournment is commonly
used as a means of political leverage in securing
or delaying action on important matters. In the
U.S. Congress, where the single annual legisla-
tive session usually ends in the fall, the president
may call an adjournment if the House and
Senate cannot agree upon a date.
FURTHER READINGS
Baumann, David, and Kirk Victor. 2001. “Congress: Pitfalls
to Adjournment.” National Journal (November 10).
“Of Adjournment.” 2009. ChestofBooks.com. Available
online at />Rules-Order-Conduct/Of-Adjournment.html; website
home page: (accessed August
28, 2009).
Robert, Henry M. 2000. Robert’s Rules of Order, Newly
Revised. Cambridge, MA: Perseus.
CROSS REFERENCES
Congress of the United States ; Legislature.
ADJUDGE
To determine by a judge; to pass on and decide
judicially.
A person adjudged guilty is one who has
been convicted in court.
ADJUDICATION
The legal process of resolving a dispute. The
formal giving or pronouncing of a judgment or
decree in a court proceeding; also the judgment or
decision given. The entry of a decree by a court in
respect to the parties in a case. It implies a hearing

by a court, after notice, of legal evidence on the
factual issue(s) involved. The equivalent of a
determination. It indicates that the claims of all
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ADJUDICATION 99
the parties thereto have been considered and set
at rest.
Three types of disputes are resolved through
adjudication: disputes between private parties,
such as indiv iduals or corporations; disputes
between private parties and public officials; and
disputes between public officials or public
bodies. The requirements of full adjudication
include notice to all interested parties (all
parties with a legal interest in, or
LEGAL RIGHT
affected by, the dispute) and an opportunity for
all parties to present evidence and arguments.
The adjudicative process is governed by formal
rules of evidence and procedure. Its objective
is to reach a reasonable
SETTLEMENT of the
controversy at hand. A decision is rendered by
an impartial, passive fact finder, usually a judge,
jury, or administrative tribunal.
The adjudication of a controversy involves
the performance of several tasks. The trier must
establish the facts in controversy, and define and
interpret the applicable law, or, if no relevant law
exists, fashion a new law to apply to the situation.

Complex evidentiary rules limit the presentation
of proofs, and the Anglo-American tradition of
STARE DECISIS, or following precedents, controls the
outcome. However, the process of applying
established rules of law is neither simple nor
automatic. Judges have considerable latitude in
interpreting the statutes or
CASE LAW upon which
they base their decisions.
An age-old question that still plagues legal
theorists is whether judges “make” law when
they adjudicate.
SIR WILLIAM BLACKSTONE believed
that judges do nothing more than maintain
and expound established law (Commentaries on
the Laws of England); other writers vehemently
disagree. Some legal analysts maintain that the
law is whatever judges declare it to be. Echoing
those sentiments, President
THEODORE ROOSEVELT
asserted that “the chief lawmakers in our
country may be, and often are, the judges,
because they are the final seat of authority.
Every time they interpret they necessarily
enact into law parts of a system of social
philosophy; and as such interpretation is
fundamental, they give direction to all law-
making” (Message to Congress [Dec. 8, 1908]).
Supreme Court Justice
BENJAMIN N. CARDOZO,

writing in The Nature of the Judicial Process,
argued that the law is evolutionary and that
judges, by interpreting and applying it to
specific sets of facts, actually fashion new laws.
Whether judges are seen as making law or
merely following what came before, they are
required to operate within narrow strictures.
Even when they are deciding a case of
FIRST
IMPRESSION
(a question that has not previously
been adjudicated), they generally try to analogize
to some existing
PRECEDENT. Judges often consider
customs of the community; political and social
implications; customs of the trade, market, or
profession; and history when applying the law.
Some, such as Justice Oliver Wendell Holmes
and Justice Cardozo, thought that considerations
of social and
PUBLIC POLICY are the most powerful
forces behind judicial decisions.
A hearing in which the parties are given an
opportunity to present their evidence and
arguments is essential to an adjudication.
Anglo-American law presumes that the parties
to the dispute are in the best position to know
the facts of their particular situat ions and
develop their own proofs. If the hearing is
before a court, formal rules of procedure and

evidence govern; a hearing before an adminis-
trative agency is genera lly less structured.
Following the hearing, the decision maker
is expected to deliver a reasoned opinion.
This opinion is the basis for review if the
decision is appeale d to a higher tribunal (a court
of appeals). It also helps ensure that decisions
are not reached arbitrarily. Finally, a well-
reasoned opinion forces the judge to carefully
think through his or her decision in order to
be able to explain the process followed in
reaching it.
Adjudication of a controversy generally
ensures a fair and equitable outcome. Because
Justice Charles Tejada
listens to arguments
during a New York
State Supreme Court
proceeding. The
adjudicative process is
governed by formal
rules of evidence and
procedure.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
100 ADJUDICATION
courts are governed by evidentiary and proce-
dural rules, as well as by stare decisis, the
adjudicative process assures litigants of some

degree of efficiency, uniformity, and predict-
ability of result.
FURTHER READINGS
Cardoza, Benjamin N. 2009. The Nature of the Judicial
Process (1921). Whitefish, MT: Kessinger.
Lewis, William D., ed. 2007. Commentaries on the Laws of
England. Clark, NJ: Lawbook Exchange.
Lucy, William. 1999. Understanding and Explaining Adjudi-
cation. New York: Oxford Univ. Press.
Roosevelt, Theodore. 1908. Eighth Annual Message to
Congress. In The American Presidency Project [online],
compiled by John T. Woolley and Gerhard Peters.
Santa Barbara, CA: Univ. of California. Available online
at (accessed July 3, 2009).
CROSS REFERENCES
Blackstone, Sir William; Cardozo, Benjamin Nathan;
Holmes, Oliver Wendell, Jr.; Judiciary.
ADJUDICATIVE FACTS
Factual matters concerning the parties to an
administrative proceeding as contrasted with
legislative facts, which are general and usually
do not touch individual questions of particular
parties to a proceeding. Facts that concern a
person's motives and intent, as contrasted with
general policy issues. Those facts that must be
found
BEYOND A REASONABLE DOUBT by the trier of
fact before there can be a conviction.
Adjudicative facts, of which a trial court may
take notice if a fact is not subject to reasonable

dispute, are those to which law is applied in the
process of adjudication; they are facts that, in a
jury case, normally go to the jury.
The role of a U.S. court is to resolve the
dispute that has brought the parties before it.
Determining what happened to whom, when
and how it happened, and what the result is or
will be, is part of the adjudicative process by
which the court reaches that
RESOLUTION. These
determinations establish the
ADJUDICATIVE FACTS
of the dispute.
Adjudicative facts differ from ordinary facts
in that they are considered facts only if the court
recognizes and accepts them. For example, a
witness may
TESTIFY that she saw the defendant’s
car parked at a specific place at a specific time.
Thesearethefactsassherecallsthem.However,
the court may reject her account and instead
accept another witness’s
TESTIMONY that the DEFEN-
DANT
was driving that same car i n another part of
town at the same time. The second witness’s
account will therefore become part of the
adjudicative facts of the case, and the f irst witness’s
recollection w ill be considered
IMMATERIAL.

Adjudicative facts are specific and unique to
a particular controversy. For this reason, the
fact determination in one case is not controlling
in other similar cases, even if all the cases arose
from the same incident. Adjudicative facts differ
from
LEGISLATIVE FACTS, which are general and
can be applied to any party in a similar
situation. For example, the facts used by a
court to determine the legality of a tax increase
levied against a single taxpayer would be
adjudicative facts particular to that taxpayer’s
case. By contrast, the facts used to determine the
legality of a general tax increase levied against all
the residents of a city would be legislative in
nature. Because facts can be perceived and
interpreted differently by different people, the
skillful lawyer is careful about what facts to
present and how to present them at trial.
Adjudicative facts re-create the course of
events that led to the dispute. They may also
predict what will happen as a result. For
example, where on e party is suing another for
PERSONAL INJURY, adjudicative facts will determine
what happened, who was at fault, and what
redress is appropriate for pain and suffering.
Adjudicative facts will further establish what
lasting consequences, such as lost future wages,
the
PLAINTIFF is likely to suffer and what

compensation is fitting.
Adjudicative facts found by the court are
final and will not be reviewed on appeal except
in cases where it can be shown that the findings
were made on insubstantial evidence or were
clearly erroneous.
FURTHER READINGS
Carp, Robert A., and Ronald Stidham. 1993. The Judicial
Process in America. 2d ed. Washington, D.C.: Congres-
sional Quarterly.
Fraher, Richard M. 1987. “Adjudicative Facts, Non-evidence
Facts, and Permissible Jury Background Information.”
Indiana Law Journal 62 (spring).
“Section 201. Judicial Notice of Adjudicative Facts.”
Available online at />guide-to-evidence/201.htm; website home page: http://
www.mass.gov/ (accessed August 28, 2009).
ADJUNCTION
Attachment or affixing to another. Something
attached as a dependent or auxiliary part.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
ADJUNCTION 101
Under the CIVIL LAW system that prevails in
much of Europe and Latin America, adjunction
is the permanent union of a thing belonging to
one person to something that belongs to
someone else.
A branch agency, for example, is an adjunct
of the main department or administrative agency.
ADJURATION
A swearing; taking an oath to be truthful.

To adjure is to command solemnly, warning
that penalties may be invoked.
ADJUST
To settle or arrange; to free from differences or
discrepancies. To bring to a satisfactory state so that
parties are agreed, as to adjust amount of loss by fire
or controversy regarding property or estate. To bring
to proper relations. To determine and apportion an
amount due. The term is sometimes used in the sense
of pay, when used in reference to a liquidated claim.
Determination of an amount to be paid to insured
by insurer to cover loss or damage sustained.
ADJUSTED GROSS INCOME
The term used for income tax purposes to describe
gross income less certain allowable deductions such
as trade and business deductions, moving expenses,
alimony paid, and penalties for premature with-
drawals from term savings accounts, in order to
determine a person’s taxable income.
The rules for computing
ADJUSTED GROSS
INCOME
for federal IN C OME TAX may differ from
the rules in a state that imposes a state income tax.
ADJUSTER
A person appointed or employed to settle or
arrange matters that are in dispute; one who
determines the amount to be paid on a claim.
An insurance adjuster determines the extent
of the insurance company’s

LIABILITY when a
claim is submitted. A public adjuster is a self-
employed person who is hired by litigants to
determine or
SETTLE the amount of a claim or debt.
ADJUSTMENT SECURITIES
Stocks and bonds of a new corporation that are
issued to stockholders during a corporate reorga-
nization in exchange for stock held in the original
corporation before it wa s reorganized.
ADMINISTER
To give an oath, as to administer the oath of office
to the president at the inauguration. To direct the
transactions of business or government. Immigra-
tion laws are administered largely by the
Immigration and Naturalization Service. To take
care of affairs, as an executor administers the
estate of a deceased person. To directly cause the
ingestion of medications or poisons. To apply a
court decree, enforce its provisions, or resolve
disputes concerning its meaning.
School teachers generally are not authorized
to administer medicines that pupils take to
school, for example.
When divorced parents cannot agree on
how to administer a visitation provision in a
judgment granting
CHILD CUSTODY to one of
them, they might have to return to court for
clarification from the judge.

ADMINISTRATION
The performance of executive duties in an institution
or business. The Small Business Administration is
responsible for administration of some disaster-relief
loans. In government, the practical management
and direction of some department or agency in the
executive branch; in general, the entire class of public
officials and employees managing the executive
department. The management and distribution of
the estate of a decedent performed under the
supervision of the surrogate’s or probate court by a
person duly qualified and legally appointed. If the
decedent made a valid will designating someone
called an executor to handle this function, the court
will issue that person letters testamentary as
authority to do so. If a person dies intestate or did
not name an executor in his or her will, the court will
appoint an administrator and grant him or her
letters of administration to perform the duties of
administration.
An executor or administrator must carry
out the responsibilities of administration, in-
cluding collection and preservation of the
decedent’s assets; payment of debts and claims
against the estate; payment of estate tax; and
distribution of the balance of the estate to the
decedent’s heirs.
ADMINISTRATION, OFFICE OF
The OFFICE OF ADMINISTRATION was established
within the Executive Office of the President

(EOP) by
REORGANIZATION PLAN 1 of 1977
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
102 ADJURATION
(implemented by EXECUTIVE ORDER 12,028, 42
Fed. Reg. 62, 895 [1977 ], issued on December
12, 1977, by President
JIMMY CARTER). The office
was created to help centralize the activities of all
EOP offices into a single agency. The director of
the Office of Administration, who is appointed
by, and reports directly to, the president, is
responsible for, according to Executive Order
12,028, “ensuring that the Office of Adminis-
tration provides units within the Executive
Office of the President common administrative
support and services.”
The Office of Administration provides ad-
ministrative support services to all EOP offices in
the White House, including services that are in
direct support of the president. The services
provided by the Office of Administration include
personnel management; financial management;
data processing; and office operations, including
the handling of mail (except for presidential
mail), messenger service, printing and duplica-
tion, graphics, word processing, procurement,
and supply. The office also oversees three
libraries (not open to the general public): a
general reference library in the New Executive

Office Building, and a reference library and a law
library in the Old Executive Office Building.
The Office of Administration consists of
nearly two hundred full- and part-time employ-
ees who maintain accounts for all EOP offices;
recruit employees (except for those who will
staff the Office of Policy Development and
the White Hous e, all of whom are political
appointees); and maintain official records,
including those of the White House. In addition
to the director and an assistant director, the
office is managed by three deputy assistant
directors, who provide supervision in the areas
of general services, information management,
and resources management.
The Office of Administration also manages
the Preservation Office, which has initiated and
overseen several restoration projects, such as the
award-winning restoration of the slate and cast
iron roo f and the restorati on o f the three
Department libraries o riginally occupying the
Eisenhower Executive Office Building that cur-
rently houses the Office of Administration. In all
the projects that are completed, the work is
monitored to ensure consistency with preservation
criteria. I n 1988 Congress e nacted legislation t o
allow the Office of Administration to accept gifts
and loans for preservation activities so as t o shift
the expense to public and p rivate partnerships.
FURTHER READING

Administration Office Website. Available online at www.
whitehouse.gov/oa (accessed September 22, 2009).
CROSS REFERENCE
President of the United States.
ADMINISTRATIVE ACTS
Whatever actions are necessary to carry out the
intent of statutes; those acts required by legislative
policy as it is expressed in laws enacted by the
legislature.
If a city commission votes to create the
position of park superintendent, that is a
legislative act that can take effect only if the
Office of Administration
General Counsel
Director's Office
Security
Customer Service
Bureau
Equal
Employment
Opportunity
Financial
Management
Human
Resources
Management
Facilities
Management
General
Services

Information
Systems
and Technology
Library and
Research
Services
Operations
and Legislative
Liaison
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
ADMINISTRATIVE ACTS 103
commission follows all the steps required for
formal legislation. When the same commi ssion
votes to rezone a parcel of real property from
single-family residential to business uses, how-
ever, that is an administrative act that does not
require the same formality as legislation. It is
administrative because it is carrying out the
zoning laws already in effect.
ADMINISTRATIVE ADJUDICATION
The process by which an administrative agency
issues an order, such order being affirmative,
negative, injunctive, or de claratory in form.

Most formal proceedings before an admin-
istrative agency follow the process of either rule
making or adjudication. Rule making formu-
lates policy by setting rules for the future
conduct of persons governed by that agency.
Adjudication applies the agency’s policy to the
past actions of a particular party, and it results
in an order for or against that party. Both
methods are strictly regulated by the law of
administrative procedure.
CROSS REFERENCES
Administrative Law and Proce dure.
ADMINISTRATIVE AGENCY
An official governmental body empowered with
the authority to direct and supervise the imple-
mentation of particular legislative acts. In addi-
tion to agency, such governmental bodies may be
called commissions, corporations (e.g., Federal
Deposit Insu rance Corporation), boards, de part-
ments, or divisions.
Administrative agencies are created by the
federal Constitution, the U.S. Congress, state
legislatures, and local lawmaking bodies to
manage crises, redress serious social problems,
or oversee complex matters of governmental
concern beyond the expertise of legislators.
Although Article I, Section 1, of the federal
Constitution plainly states that “[a]ll legislative
Powers herein granted shall be vested in a
Congress of the United States,” the “necessary-

and-proper” clause, in the eighth section of the
same article, states that Congress shall have
power “[t]o make all Laws which shall be
necessary and proper for carrying into
Execution the foregoing Powers, and all other
Powers in any Department or Officer
thereof.” With this language, many have argued
that the Framers of the Constitution expected,
indeed encouraged, the creation of powerful
administrative agencies. This argument pre-
vailed, and courts therefore have allowed the
U.S. Congress—and other legislative bodies—to
make laws that delegate limited lawmaking
authority to administrative agencies. The sub-
stance of an admi nistrative age ncy’s power s
must be intelligible, and a system of controls
must be in place to limit those powers, but
courts almost always find that administrative
agencies meet these requirements.
Administrative agency rules and regulations
often have the force of law against individuals.
This tendency has led many critics to charge
that the creation of agencies circumvents the
constitutional directive that laws are to be
created by elected officials. According to these
critics, administrative agencies constitute an
unconstitutional, bureaucratic fourth branch
of government with powers that exceed those
of the three recognized branches (the legislative,
executive, and judiciary). In response, suppor-

ters of admi nistrative agencies note that agen-
cies are create d and overseen by elected officials
or the president. Agencies are created by an
ENABLING STATUTE, which is a state or federal
law that gives birth to the agency and outlines
the procedures for the agency’s rule making.
Furthermore, agencies include the public in
their rule-making processes. Thus, by
PROXY,
agencies are the will of the electorate.
Supporters of administrative agencies note
also that agencies are able to adjudicate
relatively minor or exceedingly complex dis-
putes more quickly or more flexibly than can
state and federal courts, which helps preserve
judicial resources and promotes swift resolu-
tions. Opponents argue that swiftness and ease
at the expense of fairness are no virtues, but
while the debate continues, administrative
agencies thrive.
Governmental representation in an admin-
istrative capacity of any kind can be considered
administrative agency. The president is an
administrative agent whose enabling statute
is the federal Const itution. The 13 executive
departments reporting to the president are
administrative agencies. For example, the
DE-
PARTMENT OF JUSTICE
is a cabinet-level executive

department, but it functions as the administra-
tive agency that addresses the legal concerns of
the U.S. government and its people. The
departments housed within the Department of
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
104 ADMINISTRATIVE ADJUDICATION
Justice, such as the DRUG ENFORCEMENT ADMINIS-
TRATION
and the FEDERAL BUREAU OF INVESTIGATION,
are also administrative agencies, and they have
procedures and rules of their own.
An administrative agency that falls under
the direction of the
EXECUTIVE BRANCH is referred
to as an executive agency. However, an enabling
statute may establish an independent agency,
commission, or board, which does not fall
under the direction of the president. The
primary distinction between an executive agency
and an independent agency is that the statute
creating an independent agency typically pre-
cludes the president from removing the head of
the agency without cause. By contrast, a head of
an executive agency generally serves at the
pleasure of the president. The U.S. Supreme
Court on several occasions has considered
whether independent agencies are constitutional.
In Humphrey’s Executor v. United States, 295
U.S. 602, 55 S. Ct. 869, 79 L. Ed. 1611 (1935),
the Court held the President

FRANKLIN D.
ROOSEVELT could not remove the commissioner
of the
FEDERAL TRADE COMMISSION (FTC) without
cause. The statute that created the commission
permitted removal of the commissioner only
for inefficiency, neglect of duty, or
MALFEASANCE
of office. Roosevelt purported to remove FTC
Commissioner William E. Humphrey, who had
been no minated by President
HERBERT C. HOOVER
to a seven-year term in 1931, in order to replace
Humphrey with an individual of Roosevelt’s
own selection. The Court held that because
Humphrey was not an executive officer, the
president could not remove him from office
except for the causes set forth in the statute.
Many of the administrativ e agencies that
affect everyday activities are independent agen-
cies. Among the numerous examples of inde-
pendent agencies are the
CENTRAL INTELLIGENCE
AGENCY
, ENVIRONMENTAL PROTECTION AGENCY, the
NATIONAL LABOR RELATIONS BOARD, and the SECURI-
TIES AND EXCHANGE COMMISSION
. Because the
president is generally able to appoint the chairs
or fill vacancies within these agencies, the

president is often able to influence their acti-
vities, notw ithstanding the limitation on the
removal of the heads of the agencies.
Administrative agencies are made up of
experts in the field in which the agency
operates. For example, the Maritime Adminis-
tration employs experts in the areas of sea
commerce and navigation to set its rules on
merchant marine activities. Many agencies have
the power to assess fines or otherwise deprive
persons of liberty in hearings conducted by their
own judicial bodies, or administrative boards.
Given the specialized knowledge within admin-
istrative agencies, administrative law judges
(ALJs), who hear agency claims and disputes,
are loath to overturn the legal conclusions
reached by administrative boards. Determina-
tions and sanctions made by ALJs are subject to
review by state or federal courts, but a party
must exhaust all appeals within the agency
before suing in civil court.
An agency’s actions must be in accordance
with its enabling statute, and courts will
examine the agency records to determine
whether the agency exceeded its lawmaking or
judicial powers. Rigorous judicial oversight of
agencies would defeat a cherished feature of
administrative agency by eliminating agency
flexibility in resolving conflicts. To avoid this
outcome, most enabling statutes are worded

vaguely, in such a way as to allow the agencies
The National
Recovery
Administration was
created in the 1930s
to ensure fair market
competition. It was
one of numerous
agencies created by
Congress during the
Great Depression in
an effort to regulate
the production and
marketing of goods.
AP IMAGES
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3
RD E DITION
ADMINISTRATIVE AGENCY 105
broad discretion in determining their rules and
procedures. To keep agencies from wielding
unbridled power, the Administrative Procedure
Act of 1946 (APA) (5 U.S.C.A. § 551 [1982])
sets standards for the activities and rule making
of all federal regulatory agencies. The APA
provides federal courts with a framework
for reviewing the rules made and procedures
used by administrative agencies. Individual
states have similar statu tes to guide their own
courts.
History of Administrative Agency

The first administrative agency was created by
Congress in 1789 to provide pensions for
wounded Revolutionary War soldiers. Also in
the late 1700s, agencies were created to deter-
mine the amount of duties charged on imported
goods, but it was not until 1887 that the first
permanent administrative agency was created.
The
INTERSTATE COMMERCE COMMISSION (ICC),
created by the
INTERSTATE COMMERCE ACT (49
U.S.C.A. § 10101 et seq. [1995]), was enacted by
Congress to regulate commerce among the
states, especially the interstate transportation
of persons or property by carriers. The ICC was
designed to ensure that carriers involved in
interstate commerce provided the public with
fair and reasonable rates and services. To
buttress the Interstate Commerce Act, the
Federal Reserve System was established by the
Federal Reserve Act of 1913 (12 U.S.C.A. § 221)
to serve as the United States’ central bank and
execute U.S. monetary policy. One year later,
the Federal Trade Commission was established
by Congress to promote free and fair competi-
tion in interstate commerce by preventing
unfair methods of competition.
In 1908 the Federal Bureau of Investigation
(FBI) was established to investigate violations of
federal laws not assigned to other federal

agencies. The FBI is charged with solving crimes
such as
KIDNAPPING, ESPIONAGE, SABOTAGE, bank
ROBBERY, extortion, interstate transportation of
stolen property,
CIVIL RIGHTS violations, inter-
state gambling violations,
FRAUD against the
government, and the
ASSAULT or killing of a
federal officer or the president. As an agency
concerned with criminal apprehension, the FBI
is considered an arm of the government, and its
directorship is subject to presidential approval.
However, the FBI carries out its investigations
independent of political influence. It can, for
example, probe the actions of presidents and
legislators, the very persons responsible for its
existence.
Administrative agencies are usually created
in response to a felt public need. Some older
agencies, for example, were created after the
Civil War to address economic matters critical
to the United States’ expanding government.
After the
STOCK MARKET crash of October 1929,
and during the Great Depression of the 1930s,
Congress created numerous agencies in an
effort to regulate the production and marketing
of goods. Agencies such as the

SOCIAL SECURITY
Administration (created by the SOCIAL SECURITY
ACT OF
1935 [42 U.S.C.A. § 301 et seq.]), the
Federal Savings and Loan Insurance Corpora-
tion (established by a 1933 amendment to the
Federal Reserve Act, 12 U.S.C.A. § 264, and now
codified at 12 U.S.C.A. §§ 1811–1831) helped
provide financial security for many Americans.
The National Industrial Recovery Act (NIRA)
(15 15 U.S.C.A. §§ 701 et seq., 40 U.S.C.A. §
401 et seq.) created the
NATIONAL RECOVERY
ADMINISTRATION
to ensure fair market competi-
tion. However, the NIRA gave the president
limitless authority to impose sanctions, and it
was declared invalid by the Supreme Court in
the “Sick Chicken” case,
SCHECHTER POULTRY
CORP
. V. UNITED STATES, 295 U.S. 495, 55 S. Ct.
837, 79 L. Ed. 1570 (1935). The National Labor
Relations Board (created by the National Labor
Relations Act of 1935 [29 U.S.C.A. § 151 et seq.],
later amended by acts of 1947 and 1959) also
helped to ease the devastating effects of the
depression, by protecting employees’ rights to
organize, preventing unfair labor practices, and
promoting

COLLECTIVE BARGAINING between
employers and labor unions.
Congress installed the Federal Radio Com-
mission (FRC) in 1927 after entrepreneurs
discovered the commercial potential of radio
airwaves. In 1934 the FRC was merged into
the
FEDERAL COMMUNICATIONS COMMISSION (FCC),
which was created by the Communications
Act of 1934 (47 U.S.C.A. § 151 et seq.) to
tackle the myriad issues presented by the
sudden widespread use of radio waves. In
the wake of television’s popularity, the Com-
munications Satellite Act of 1962 (47 U.S.C.A.
§§ 701–744) was enacted by Congress to
broaden the FCC’s powers to include re-
gulation of television broadcasting; telephone,
telegraph, and cable television operation;
GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION
106 ADMINISTRATIVE AGENCY
two-way radio and radio operation; and satellite
communication.
When the United States entered
WORLD WAR II,
more agencies were created or enlarged to
mobilize human resources and production and
to administer price controls and rationing. The
social upheaval of the 1960s spawned agencies
designed to improve urban areas, provide
opportunities for people who were historically

disadvantaged and marginalized, and promote
artistic endeavors. In the 1970s, 1980s, and
1990s, pressing issues such as human and
environmental health were addressed through
the creation of agencies such as the
ENVIRON-
MENTAL PROTECTION AGENCY
and a new, enlarged
DEPARTMENT OF ENERGY.
Federal Administrative Agencies
On the federal level, business and individual
matters are addressed by such agencies as the
FARM CREDIT ADMINISTRATION, SMALL BUSINESS ADMIN-
ISTRATION
, COMMODITY FUTURES TRADING COMMISSION,
FEDERAL TRADE COMMISSION, FEDERAL DEPOSIT INSUR-
ANCE CORPORATION
, OFFICE OF THRIFT SUPERVISION,
INTERNAL REVENUE SERVICE, DEPARTMENT OF COM-
MERCE
, INTERSTATE COMMERCE COMMISSION,and
SECURITIES AND EXCHANGE COMMISSION.
Governmental money matters are overseen
and assisted by the
GENERAL A CC OUNTING OFFICE,
OFFICE OF MANAG EMENT AND BUDGET, O ffice of the
Comptroller of the Currency,
TREASURY DEPARTMENT,
GENERAL SERVICE S ADMINISTRATION , C ONGRES SIONAL
BUDGET OFFICE

,andFEDERAL RESERVE BOARD.
Public services are handled by administra-
tive agencies that include the
DEPARTMENT OF
EDUCATION
, DEPARTMENT OF TRANSPORTATION, En-
vironmental Protection Agency,
FOOD AND DRUG
ADMINISTRATION
, DEPARTMENT OF HEALTH AND HU-
MAN SERVICES
, DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT
, DEPARTMENT OF INTERIOR, IMMIGRA-
TION
and NATURALIZATION service, and National
Highway Traffic Safety Administration.
Work-related administrative agencies in-
clude the
TENNESSEE VALLEY AUTHORITY , Office of
Technology Assessment, Occupational Safety
and Health Administration, Occupational Safety
and Health Review Commission, National
Labor Relations Board, Mine Safety and Health
Administration, Mine Safety and Health Review
Commission,
MERIT SYSTEMS PROTECTION BOARD,
DEPARTMENT OF LABOR, EQUAL EMPLOYMENT OPPOR-
TUNITY COMMISSION
, and Office of Personnel

Management.
Police and military functions are served by
the Central Intelligence Agency,
DEPARTMENT OF
DEFENSE
, Department of Justice, Department of
Veterans Affairs, Federal Bureau of Investiga-
tion, and
NATIONAL SECURITY COUNCIL.
The administrative agency that directly
affects the most U.S. citizens is the Social
Security Administration (SSA). The SSA collects
contributions from workers and pays out cash
benefits when a worker retires, dies, or becomes
disabled.
As the needs of the nation change, Congress
continues to establish new agencies and abolish
existing agencies. The Interstate Commerce
Commission, for instance, was established in
1887 to regulate carriers engaged in the
transportation of interstate and foreign com-
merce in the United States. Over time, many of
the commission’s functions were transferred to
other agencies or otherwise abandoned, and
Congress abolished the commission in 1995. A
more recent example of the development of an
administrative agency is the creation of
HOME-
LAND SECURITY DEPARTMENT
in 2002 to prevent

terrorist attacks in the United States and to
reduce the country’s vulnerability to
TERRORISM
in the aftermath of the SEPTEMBER 11TH ATTACKS.
State and Local Administrative
Agencies
State and local administrative age ncies often
mirror federal agencies. Thus, the individual
states have agencies that control transportation,
public health, public assistance, education, natu-
ral resources, labor, law enforcement, agricul-
ture, commerce, and revenue. Any regulation
established by such an agency that conflicts with
a federal regulation will not be legally valid, but
this fact does not keep state agencies from
developing regulations that differ from those
promulgated by their federal counterparts. In the
spirit of administrative agency, state and local
governments also create agencies that help
address compelling, peculiarly local concerns.
Just like federal agencies, state and local
administrative agencies are often empowered to
hold hearings. These hearings are conducted by
their administrative boards, which are obligated
to represent the
PUBLIC INTEREST. By contrast,
courts must remain impartial to the two parties
before them. A
PAROLE board, for example, holds
informal hearings durin g which prisoners are

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ADMINISTRATIVE AGENCY 107