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Whether to give retroactive effect to new rules adopted in the course of agency adjudication is a difficult and recurring problem in the field of administrative law. It has arisen with notable frequency. In order to establish an alternative procedure where inequity may be avoided, the Administrative Procedure Act, 5 U.S.C. Sec . 551 et seq., has authorized agencies to conduct formal rule making proceedings, in which all interested parties are notified, hearings conducted, and new rules thereby adopted. See also 29 U.S.C. Sec . 156 (1970). Rules so adopted are prospective in application only. 5 U.S.C. Sec . 551(4) (1970). Despite substantial and repeated scholarly and judicial criticism, many an agency has largely ignored the rule making process, and has chosen rather to fashion new standards and to abrogate old ones in the context of case-by-case adjudication. See, e.g., 1 Davis, Administrative Law Sec. 6.17 (1970 Supp.); Peck, The Atrophied Rule-making Powers of the National Labor Relations Board, 70 Yale L.J. 729 (1961); Shapiro, The Choice of Rulemaking or Adjudication in Development of Administrative Policy, 78 Harv.L.Rev. 921 (1965); NLRB v. Wyman-Gordon Co., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed. 2d 709 (1969).

Judge Henry ...

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