The increasing credibility gap in, and judicial review of, administrative determinations is a resultant of agency and judicial misunderstanding and language. Briefly, an examiner's intermediate report ordinarily evaluates the witnesses' demeanor, conduct, believability and credibility before accepting as true certain of their testimony, upon which findings of fact may now be based. Subsequently, the agency has the opportunity to exercise its statutory power to adopt, modify, or reject these findings. Thereafter, on judicial review, the court's whole record approach takes into account as a factor and scrutinizes any examiner agency disagreement as to findings of fact in determining whether substantial evidence exists to support those of the latter.


Law Professors' Ruminations 1969 (Symposium)