The Social Construction of Regulation: Lessons from the War Against Command and Control
89 Pages Posted: 23 Mar 2010 Last revised: 18 May 2010
Date Written: March 17, 2010
Law reform is central to legal scholarship; most law review articles identify a problem with existing law and propose a solution. This article turns attention to how legal scholars identify problems worthy of reform. It presents the thirty year debate over regulatory reform in the environmental area as a cautionary tale about how myopic framing of “the problem” can unduly constrain the range of reforms considered. Using a constructionist framework drawn from social problems literature and empirical analysis of citation patterns in the legal literature, the article examines the means by which the community of scholars developed its collective view of the problem with command and control regulation. The article offers an alternative construction of the traditional regulatory system that offers a better fit to the available evidence and opens the door to different reforms. Recognizing the contextual nature of constructed accounts of regulation, it provides three recommendations for dealing with competing constructions in this area and in others.
Keywords: environmental law, regulatory reform, constructionist approach to reform
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