In the Valley of Decision: What To Do about the Multitude of Files of Quasi Cases

Abstract

In 1887 the Congress delegated, for the first time, legislative and judicial powers to an executive agency, the Interstate Commerce Commission. Today, under such delegations and in accordance with the constitutional right to due process, federal agencies conduct quasi-judicial and quasi-legislative proceedings that create hundreds of thousands of case files a year. Certain agencies each year select for transfer to the National Archives case files of important cases in accordance with selection schemes that were devised as far back as forty years ago. This large and inexorably increasing body of records is seldom used and almost never for the reasons for which it was selected—importance and precedent. The agencies publish in considerable detail their important and precedential decisions and the reasoning leading to these decisions; and these published reports, rather than the case files, are widely used. The relatively few users of the case files are almost always seeking in these files incidental information concerning various subjects that usually have little or no relation to the importance of the cases. The article urges appraisers to keep in mind an obligation to the taxpayer of justifying the cost of maintaining in perpetuity such an ever-increasing body of records, and to the researcher of selecting cases for which there is a reasonable expectation that their future use will justify such cost. Attempting to balance these two considerations leads to the conclusion that such appraisals are not likely to approach perfection and that the best appraisal is that which does the least harm.