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The procedural due process questions raised by Section 401 differ in substantial ways from questions in traditional procedural due process cases. In most of the decided cases a governmental body or a private individual was attempting to harm the interests of the person claiming due process protection. Due process requirements were established as protections for the defendant. Only a few of the cases involved a claim of due process in access to a judicial remedy. Persons contesting the constitutionality of Section 401 will argue that the limitations imposed and the procedures required by that Section fail to meet the requirements of due process for the assertion of a legally recognized claim. Existing case law will, therefore, provide guidance only by analogy for the solution of new problems, and will not directly control resolution of the questions presented. Definite and certain answers or predictions cannot be made. What follows will be a sketch of how constitutional principles may be applied and not a definitive and final disposition of the many arguments which may be anticipated.

In January 1984 the NLRB, reconstituted by President Reagan's appointees, announced significant changes in the Board's policies concerning deferral to the arbitration processes established by employers and unions in their collective bargaining agreements. The new policies are redolent with the politics of a changed administration rather than expertise in labor relations. The changes continue the Board's uncertain treatment of the relationship between its jurisdiction to prevent unfair labor practices and arbitrators' decisions concerning collective bargaining agreements. The newly announced policies are consistent with the conviction that the federal government should sharply reduce its regulatory activities, transferring its previous responsibilities to local governments or private initiative. These policies are also consistent with a view that labor unions are not desirable institutions that deserve protection to ensure their continued existence and growth. They reflect a buoyant optimism that, despite the problems associated with unbridled pursuit of self-interest, all will go well if government will only go away. There certainly will be judicial challenges to, and probably rejection of, at least portions of the new policies. The certainty of judicial review thus makes it appropriate to reconsider the entire policy of Board deferral to the arbitration process. This article is such a reconsideration and proposes that courts should no longer permit the Board to pursue a policy of deferral. Primary responsibility for development of the policy governing the relationship between the prevention of unfair labor practices and the arbitration process should be placed upon the General Counsel of the NLRB, who now in fact makes the decisions and thus produces the law in action even under Board announced policies. Questions of deferral have arisen in part because of the unsatisfactory state of the law concerning the duty to bargain during the term of a collective bargaining agreement. The present law suggests that ...

Despite the Federal Tort Claims Act's explicit purpose to make state law determinative of recovery for governmental wrongs, the United States Supreme Court in Laird v. Nelms held that liability under the Act may not be predicated on a state statute imposing absolute or strict liability. Professor Peck challenges the Court's rationale in reaching this decision, concluding that Laird v. Nelms makes legislative revision of the Federal Tort Claims Act imperative. To guarantee that the Act will not insulate the government from strict liability for its ultrahazardous activities, Professor Peck proposes several basic changes to the Federal Tort Claims Act, the most vital of which are amendments to the Act's jurisdictional grant and discretionary function provisions.

That courts must and do make law is a proposition which no longer admits of debate. What remains debatable, however, is whether they choose the proper subjects and occasions for exercising their lawmaking powers as well as whether the products which they fashion are the best or most suitable for governing the affairs to which they will apply. Logically these questions involve separable issues, although there is a noticeable tendency on the part of some commentators to refer to the products of which they disapprove as judicial legislation and to those of which they approve as fine examples of common law sensitivity to the needs of the times. It is with this understanding and caution that the following analysis of two recent creative decisions of state courts in the field of labor law is offered.

The first view of administrative law and the administrative process in the Philippines is a familiar one to an American lawyer. Even the names of important agencies are the same as, or very similar to, the names of important agencies of the United States government. Thus, there is a Securities and Exchange Commission, a Civil Aeronautics Administration, a Philippine Patent Office, a Food and Drug Administration, a Bureau of Internal Revenue, a Bureau of Immigration, and a Bureau of Customs. Some departmental names are also familiar: Justice, Agriculture and Natural Resources, Commerce and Industry, and Labor. And, though many of the some 200 other bureaus, offices, commissions, etc. of the executive branch of the Philippine government have exotic names, an American lawyer recognizes in their number a proliferation of agencies similar to that which has occurred in the United States in response to demands for increased governmental regulation and services.

A discussion of the requirements for obtaining review of governmental action might quickly degenerate into a sterile exercise in classification and distinction of the various situations in which challenges to governmental action were permitted or denied. The situations in which a person's interests, privileges, or rights have been sufficiently involved to confer upon him the standing to obtain review are many and varied. Certainly the Washington cases, which draw distinctions, later to be repudiated or ignored, between state action and municipal action and between expenditure of funds and control of property, as well as the various pertinent statutory provisions, offer tempting materials for one inclined to catalog a field of law. The subject is, however, one which benefits greatly when viewed in the broader perspective of the role of the judiciary in the process of government. The traditional legal language is that of standing and ripeness for review. So viewed, the question becomes one of political science as much as of law, and the evaluation of the soundness of decisions depends upon whether the judiciary has properly discharged its function in the operation of governmental machinery.

The purpose of this article is a limited one. It contains no suggestions for a broad statutory scheme for distributing all the burdens and costs of government. Its purpose is to suggest no more than a workable and just construction for the discretionary function exception of the statute. For the greatest part, the suggestion is no more than what the legislative history of the exception suggests—that the courts take note of the special problems of determining the liability of the Government for torts and then proceed to decide the cases as they would have done if the exception were not present in the act. They will not be without guides if they do so. Historical analogies from the fields of mandamus actions and private damage suits against government officials, if analyzed in light of the reasons for the decisions, give some aid. More important, the principles of ordinary tort law supply answers to the liability of the Government under the act.

The following articles, the work of the faculty of the School of Law and a member of the Washington Bar, constitute the first academic comment on the laws of 1959. For obvious reasons, these articles are not represented to the reader as a complete survey of the legislative session. Rather, they are merely a compilation of comments on acts which the writers have found to be important, timely, or merely interesting. The Administrative Law section covers the Administrative Procedure Act (Trautman and Peck) and counties—coordination of administrative procedures (Trautman).