Capture Theory and the Courts: 1967-1983

Abstract:     
The most remarkable period since the adoption of the APA was that from about 1967 to 1983. During these years, the courts dramatically revised administrative common law in order to open up agency processes to new groups and perspectives, and transferred significant authority from agencies to reviewing courts. Since 1983, the tenor of judicial doctrine has been very different, with a turn toward formalism, common-law concepts, and a shift in authority back toward agencies. This article seeks to explain these developments in terms of a progression of pessimism about the administrative state. During the 1967-1983 period courts saw agencies as being vulnerable to capture by industry groups, but did not view legislative or judicial processes as being similarly threatened. In the more recent period, all institutions of government have been seen as being subject to interest group manipulation, with the result that transferring authority from agencies to legislatures or courts no longer holds much appeal.

Accepted Paper Series