Enlightened Regulatory Capture

49 Pages Posted: 8 Aug 2013 Last revised: 30 Oct 2014

David Thaw

University of Pittsburgh - School of Law; University of Pittsburgh - School of Information Sciences; Yale University - Information Society Project; University of Pittsburgh - Graduate School of Public & International Affairs

Date Written: August 8, 2013


Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest. These include: 1) legislatively-mandated adoption of recommendations by an advisory committee comprising private interests and "reduced-bias" subject matter experts; 2) relaxed procedural constraints for committee action to prevent internal committee capture; 3) and opportunities for committee participation to be worthwhile for representatives of private parties beyond the mere opportunity to advance their own interests. This Article presents recommendations based on those characteristics as to how and when legislatures may endeavor to replicate this success in other industries to improve both the legitimacy and efficacy of the regulatory process.

Keywords: Regulatory Capture, Administrative Law, regulation, cybersecurity, information security, HIPAA, healthcare

Suggested Citation

Thaw, David, Enlightened Regulatory Capture (August 8, 2013). 89 Wash. L. Rev. 331 (2014); U. of Pittsburgh Legal Studies Research Paper No. 2014-30. Available at SSRN: https://ssrn.com/abstract=2298205 or http://dx.doi.org/10.2139/ssrn.2298205

David Thaw (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States

HOME PAGE: http://www.davidthaw.com

University of Pittsburgh - School of Information Sciences ( email )

Pittsburgh, PA 15260
United States

Yale University - Information Society Project ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States

University of Pittsburgh - Graduate School of Public & International Affairs ( email )

Pittsburgh, PA 15260-0001
United States

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