The Paranoid Style in Regulatory Reform

87 Pages Posted: 13 Jan 2011 Last revised: 14 Nov 2012

Jodi L. Short

University of California Hastings College of the Law

Date Written: January 12, 2011

Abstract

The U.S. administrative state has been involved in a decades-long regulatory reform project encompassing both a shift away from what have been characterized as “command-and-control” approaches to regulation and toward approaches that are more market-oriented, managerial, participatory and self-regulatory in their orientation. Through a content analysis of the nearly 1,400 law review articles that comprise the legal critique of regulation between 1980 and 2005, I show that the most salient critiques of regulation concern neither its cost nor its inefficiency, as many have assumed. Instead, they express a deep-seated anxiety about the fundamentally coercive nature of administrative government. In addition, I demonstrate that “voluntary” or “self-regulation” approaches that enlist regulated entities and citizens to perform core governmental functions like standard-setting, monitoring and enforcement emerged from the reform debate with particular prominence. Using both statistical and interpretive inference, I argue that framing regulation as a problem of coercive state power created a logic of governance uniquely suited to self-regulatory solutions that promised non-coercive ways of governing. After presenting my empirical analysis, I situate the coercive state rhetoric of late-twentieth-century regulatory reform in broader historical context, highlighting its continuities and discontinuities with the coercive state rhetoric that has infused debates about expanded federal governance throughout U.S. history: at the founding, during the New Deal, and in the postwar period. I argue that proponents of government regulation must recognize and engage this deep-seated anxiety about state coercion. Before a convincing and durable case can be made for any particular regulatory policy, a case must be made for the state.

Keywords: regulatory reform, administrative law, coercion, efficiency

JEL Classification: K08, K28, K23

Suggested Citation

Short, Jodi L., The Paranoid Style in Regulatory Reform (January 12, 2011). Georgetown Public Law Research Paper No. 11-10; Georgetown Public Law Research Paper No. 11-10. Available at SSRN: https://ssrn.com/abstract=1739015

Jodi L. Short (Contact Author)

University of California Hastings College of the Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

Paper statistics

Downloads
301
Rank
80,888
Abstract Views
1,359