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Hastings Law Journal

Authors

Jodi L. Short

Abstract

The U.S. administrative state has been involved in a decades-long regulatory reform project encompassing 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 1400 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 noncoercive ways of governing. I situate my empirical analysis in 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. Drawing on these empirical and historical analyses, I argue that proponents of government regulation must recognize and engage the deep and abiding 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.

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