The Regulatory Process: A Framework for Analysis

Abstract

The literature of regulation in the United States, as it has developed over a period of several decades, yields an inadequate and distorted conception of the regulatory process. Most lawyers have tended to consider governmental regulation of economic enterprise within the framework of legal theory, while administrators and students of administration have tended to analyze regulatory activity in terms of the conventional categories of governmental administration. These divergent attitudes toward government regulation are based on different sets of values, assumptions, objectives, and professional training. Areas of agreement have not been staked out; significant differences in the consequences of the approaches have not been identified. Applications of each approach have been charged with value judgments whose premises have rarely been examined and tested. One result has been the tendency, on both sides, to show more interest in what ought to be taking place in regulatory administration than in what goes on. Although the literature of the regulatory process has concentrated on technical and procedural issues presented in the professional jargons of the lawyer and the expert, the modern debate over the reform of regulation has been part of and a major expression of the contemporary debate on the role of government in industrial society. Since the creation in I933 of a special committee on law by the American Bar Association, battle lines have been drawn between bureaucrats and defenders of liberty, between fighters for social change and protectors of privilege, between absolutists and believers in a government of laws and not of men. At stake in these legislative struggles over administrative procedure have been such fundamental issues as the proper scope of the government's role in economic life, the appropriate limits to the growth in discretion, and the conditions under which increasing governmental activity affecting economic life would be tolerated or accepted. The primary characteristics of the literature of regulation need only be summarized here. Research and discussion have focused heavily upon adjudicatory procedures and the structure of the independent regulatory commission. The regulatory programs of departments and agencies other than independent commissions have received scant attention from reformers or scholars. Similarly, most studies have concentrated upon adversary proceedings, *A.B., A.M. I940, University of Wisconsin; Ph.D. in Politics I948, Princeton University. Professor of Politics, Princeton University. Member, Organizing Committee, President's Conference on Administrative Procedure, I960; Associate Staff Director, Special Committee on Federal Conflict-of-Interest Laws, Association of the Bar of the City of New York, I958-60. Author, REGULATING BUSINESS BY INDEPENDENT COMMISSION (I955), THE JOB OF THE FEDERAL EXECUTIVE (1958). Contributor to professional periodicals.