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Erie v. Tompkins evidences decentralizing trends in our federal system in two different ways—one fairly obvious and relatively orthodox; the other neither obvious nor orthodox, but probably the more significant. The first aspect may be touched upon very briefly and the ramifications of the second explored more fully.The obvious side of Erie v. Tompkins lies in its rejection of a common law of the United States available for application by the federal courts in diversity cases. This conception was given expression by Story in Swift v. Tyson, and has been followed in many, if not most, of the succeeding cases building upon and expanding Story's doctrine.

The continued growth of administrative agencies exercising legislative and judicial (or, if one prefers, "quasi-legislative" and "quasi-judicial") powers furnishes a constant inducement to reevaluate the separation of powers theory. In a general way, the theory is admittedly hostile to this development as involving an inordinate concentration of power in the executive. Accordingly, we are presented with the problem of whether governmental practice should be accomodated to the theory or the theory revised to fit practice.Of course the pressure of circumstance has already made a considerable impression on doctrinal exposition. Thus it is not seriously contended that the delegation ofanyrule-making power to administrative agencies is necessarily a delegation of legislative power within the meaning of the doctrine. Nor is it seriously contended that the right of such agencies to conduct a trial and come to a formal judgment thereupon is necessarily a delegation of judicial power—again within the meaning of the doctrine.

Among the problems touched upon by the President's Committee on Administrative Management is that of the role of administrative discretion in the governmental process. Both Professor Hart and Professor Cushman have contributed to the statement of, and have suggested solutions for, this problem.1 Professor Hart is concerned with the exercise of a rule-making discretion at the administrative level, and has ably defended the exercise of this type of decision-making by personnel under the control of the Executive rather than Congress. In other words, the mere fact that administrative action takes the form of general rules does not relate it functionally to the legislative department, and once the notion that rule-making is "legislation" in a separation-of-powers sense is got out of the way, the case for a complete integration of such powers under the control of the President can be pushed through to unqualified conclusion.

On August 12, President Roosevelt nominated Senator Hugo L. Black of Alabama to be an Associate Justice of the United States Supreme Court. On receipt of the message, Senator Ashurst moved for its immediate consideration on the ground that "whenever the Executive honors this body by nominating a member thereof, that nomination is confirmed without reference to a committee, for the obvious reason that no amount of investigation or consideration by a committee of the Senate could disclose any new fact or shed any new light upon the character, attainments, and ability of the nominee, because if we do not know him after long service with him, no one will ever know him."

Of the various proposals embodied in the recently published Report of the President's Committee on Administrative Management, that calling for extension of the merit system has received most publicity. This publicity has been generally favorable, and, in the opinion of the present writer, undiscriminating. Everyone agrees that appointments to the public service should be based upon merit of some kind. The pertinent questions are: First, should the sort of merit represented by party service be given any consideration in the public service? Second, assuming that it should not, how is the sort of merit connoted by efficiency in doing the particular job assigned to be secured? Any proposal to extend the merit system which fails to tackle these questions unequivocally is hardly entitled to unqualified support.

The power of the Senate to advise and consent to presidential nominations of judicial officers has recently been subjected to sharp criticism. In the main, the Senate is charged with misfeasance rather than nonfeasance in the discharge of this function. In other words, proposals to deprive the Senate of this power are not, like proposals to abolish the electoral college, based on alleged failure of the agency to function independently, but rather on its alleged abuse of the discretion conferred upon it. The Senate, say the critics in effect, has judged not wisely, but too well. Accordingly, it is their general disposition to deprecate interference with the executive rather than to devise more effective cheeky upon him.