The Bureaucrats of Private Law
45 Pages Posted: 7 Sep 2017
Date Written: September 4, 2017
Theories of regulation conceptualize the task of the agencies of the modern state in terms of the public interest. Regulatory bureaucracies, in this conventional view, should ensure the efficient allocation of scarce resources and secure distributive justice and democratic citizenship. Many agencies nicely fit this collectivist mold, but not all. A significant subset of the regulatory practice deals with a different task: delineating the terms of our interpersonal transactions, forming the infrastructure for our dealings with other people. This Essay focuses on these private law bureaucracies, which regulatory theory marginalizes or neglects.
Our mission is threefold. Descriptively, we show that many agencies are indeed best understood as devices that supplement or even supplant the role of courts in addressing horizontal, rather than vertical or collectivist, concerns. In other words, many of the practices and operational codes and sensibilities of these agencies are best conceptualized as responses to the horizontal challenges of the creation of the infrastructure for just interpersonal interactions in core social settings, such as the workplace or the marketplace.
Normatively, we argue that the seeming consensus among theorists of both private law and regulation, in which these tasks belong to judges, rather than administrators, is misguided. In many contexts – increasingly prevalent in contemporary society – agencies, rather than (or in addition to) courts, may well be the (or at least an additional) appropriate institution for the articulation, development, and vindication of our interpersonal rights.
Finally, jurisprudentially, we offer some initial steps towards a theory of private law bureaucracies. We demonstrate the regulatory implications – in both substance and form – of undertaking the role of establishing and maintaining the infrastructure for just interpersonal interaction and advance a preliminary account of the regulatory toolkit appropriate to this horizontal task.
Keywords: Regulation, Private Law
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