A Revisionist History of Regulatory Capture

The idea of regulatory capture has controlled discussions of economic regulation and regulatory reform for more than two generations. Originating soon after World War II, the so-called capture thesis was an early harbinger of the more general critique of the American regulatory state that dominated the closing decades of the twentieth century. The political ramifications of that broad critique of government continue to be felt today both in the resilient influence of neoliberal policies such as deregulation and privatization as well as in the rise of more virulent and populist forms of anti-statism. Indeed, the capture thesis has so pervaded recent assessments of regulation that it has assumed something of the status of a ground norm – a taken-for-granted term of art and an all-purpose social-scientific explanation – that itself frequently escapes critical scrutiny or serious scholarly interrogation. This chapter attempts to challenge this state of affairs by taking a critical look at the emergence of regulatory capture theory from the perspective of history. After introducing a brief account of the diverse intellectual roots of the capture idea, this chapter makes three interpretive moves. First, it suggests that, to a large extent, capture theory relies on a short and increasingly outmoded history of American regulation that is out of synch with the latest accounts of the development of the American regulatory and administrative state. Second, it questions just how “new” the insights of capture theory ever really were or are. Although earlier generations of American political thinkers and regulatory reformers did not use the language of “capture” per se, they were exceedingly well-versed in the general notion that democratic and republican institutions of government were prone to the corruptions of private interest. Finally, this chapter documents the degree to which progressive regulatory initiatives were themselves oriented toward the control of undue corporate and private influence in democratic and public life. It closes by suggesting that some of those original progressive explorations of the ongoing problem of private coercion in a democratic republic continue to provide a more satisfactory account than capture theory of the new configurations of public and private power that dominate early twenty-first century American life

Willard Hurst, Technological Changes, and the Transformation of American Public Law

As Sociobiologist E.O. Wilson once famously framed the “problem of humanity”: “We have paleolithic emotions; medieval institutions; and god-like technology.” America’s greatest philosopher John Dewey similarly placed this yawning gap between rapidly expanding technological change and slowly evolving human emotions and institutions at the heart of what he called The Public and Its Problems. Indeed, Dewey traced the origins of the modern American state as well as what he termed “the Great Society” to the new and modern technologies in production and commerce and steam and electricity that “resulted in a social revolution.” Without warning, Dewey argued, traditional local communities now found their activities “conditioned by remote and invisible organizations … with impact upon face-to-face associations so pervasive and unremitting that it is no exaggeration to speak of a ‘new age of human relations.’” Notably, however, Dewey held that “political and legal forms have only piecemeal and haltingly, with great lag, accommodated themselves to the industrial transformation. From Max Weber to Lewis Mumford to Herbert Marcuse, a wide range of social theorists have placed the challenge of the impact of technological change on modern economy and society at the very center of contemporary scholarly inquiry. Business and economic historians have followed suit, repeatedly centering technology in their narratives of modern development. For Alfred Chandler, dean of American business history, the advent of the railroad explained a lot about the subsequent history of the United States. Railroads were “the nation’s first big business” spawning innovations in corporate finance, administrative management, modern labor relations, and, perhaps most significantly, the “modern governmental regulation of business” i.e., the modern regulatory state

Putting the \u27Public\u27 in Public Administration: The Rise of the Public Utility Idea

From the perspective of American legal history, one of the most important and lasting themes in the work of Jerry L. Mashaw is his definitive establishment of the long and deep historical origins of American administrative law and the administrative state. Mashaw\u27s remarkable charting of “The Lost One Hundred Years of American Administrative Law” is a monumental achievement that forever alters the established chronology and history of the administrative regulatory state in the USA. Through his emphasis on what Bruce Wyman dubbed the “internal law” of administration, Mashaw identified a new route into a previously undiscovered (or at least underacknowledged) history of American administrative action and law a century before the so-called invention of modern administration in the 1887 Interstate Commerce Act.Footnote1 Together with the subsequent work of his colleague Nick Parrillo, Mashaw now provides us with an entirely new canvas for rethinking the whole history of the administrative state.Footnote2 The American state was not “weak” or “laggard” or “underdeveloped” or “absent” before 1887. And the arrival of sophisticated techniques of administration and complicated administrative legal problems and doctrines certainly did not await the formation of the Interstate Commerce Commission. So we now have a new and “long” history of administrative law to contemplate from 1787 to 1887 and beyond. But some important questions and interpretive problems remain. Among the most significant is charting the exact relationship between the sprawling early regime of administrative regulation that Mashaw heroically uncovers to the later transformations in administration and regulation that took place at the turn of the twentieth century. Are these regimes of a piece – similar, contiguous, and continuous – reflective of an evolution rather than a revolution? Or are there still some dramatic differences and changes circa 1887 that suggest not a move from absence to presence (Mashaw has certainly slain that beast), but perhaps a transformation nonetheless? Nick Parrillo\u27s account of a “salary revolution” – a transformation in personnel, professionalism, and basic government–citizen relations – at the very center of this new, long history of administration is an excellent example of the next stage of inquiry. This essay suggests another potential transformation for further historical investigation – i.e., the very transformation in the nature of “the public” and the general idea of regulation in “the public interest.” At the center of that history stands the law of public utility

The Administrative State in America

The purpose of this contribution is to examine the idea of the Continental State in a common-law context. To that effect, the focus of this essay is the American state. Typically, in comparing the American regime to the Continental idea of the state, much has been made of a so-called tradition of ‘American exceptionalism’. Alexis de Tocqueville perhaps started this trend when he observed in the United States distinctive qualities of individualism, associationalism, localism, and decentralization, but not many inklings of a modern state. ‘The federal government of the United States’, he mistakenly surmised in the early nineteenth century, ‘is tending to get daily weaker; stage by stage it withdraws from public affairs, continually narrowing its sphere of action. Being naturally weak, it gives up even the appearance of strength.’ Hegel went further and questioned whether the United States was a ‘real State’ at all. As he noted, ‘[t]‌he general object of the existence of this State is not yet fixed and determined, and the necessity for a firm combination does not yet exist; for a real State and a real Government arise only after a distinction of classes has arisen.’ Without the class dynamics of the old world, without a feudal aristocracy, without a military nobility or an elite corps of state civil servants, and without the reception of Roman law, what could one possibly be talking about by referring to an American state? Despite more recent efforts to ‘bring the state back’ into American social science, (p. 99) myths of American state ‘weakness’ and ‘exceptionalism’ continue to predominate in the existing literature. This contribution, however, takes issue with this common portrait of American state exceptionalism. Building on some very recent historical and theoretical work on the American state, it explores the conscious effort to create a modern state in the United States on a more or less Continental model. As Daniel Rodgers and James Kloppenberg have suggested, American ideas and institutions were not created in splendid isolation in the wilderness5 Rather, from the beginning, American intellectuals, jurists, and state reformers engaged in an extended transatlantic dialogue concerning matters of politics, law, and statecraft. This was especially true of the period that experienced the most extensive transformations in American governance and statecraft—the late nineteenth and early twentieth centuries. Accordingly, this contribution takes a close look at the American tradition of law and state building in this formative era—from 1866 to 1932. It was a period in which the Continental idea of the state loomed especially large

Law and the Social Control of American Capitalism

This Essay is part of a larger, ongoing investigation of the role of law in the creation of a modern American state from 1877 to 1932. That project charts the decline of an early nineteenth-century world of local, common law self-government (what I called in a previous work a ¿well-regulated society¿) and the rise of a distinctly modern administrative regulatory state in the United States. This new legal-political regime was rooted in three interlinked developments: the centralization of public power; the individualization of private right; and the constitutionalization of the rule of law. Beginning soon after the Civil War, nineteenth-century common law understandings of the public obligations of associative communities in a confederated republic were increasingly replaced by a new emphasis on the constitutional rights of individual citizens in a nation-state¿a nation-state insistently expanding its general police and regulatory authority

The Concept of the State in American History

Debates about the state rage in contemporary America. On the right, libertarian and tea party rhetoric fulminates about shrinking the state or shutting down the government, frequently in hyperbolic terms like the Americans for Tax Reform notion of drowning it in a bathtub. On the left, concern about the fate of the welfare state and an ever-expanding warfare and penal state produces equally impassioned retorts. Discussion of the American state-its nature, its size, and its uncertain future-dominates the political landscape as perhaps never before

Making the Modern American Legislative State

The essays in this volume are dedicated to two propositions. First, most generally, they aim to reinvigorate scholarly interest in the subject of legislation and bring a new level of analytical sophistication to the study of the legislature. Second, they are committed to looking at legislation developmentally, that is, legislation not as the simple static textual output of a law-drafting body, but as a dynamic social and political process-a living and breathing human activity with a distinct time dimension involving a complex pattern of beginnings, evolutions, maturations, mutations, emendations, and, of course, endings. These propositions nicely intersect with recent themes and priorities in the fields of law and American history

A MODERN DEMOCRATIC STATE, IF WE CAN KEEP IT: Response to Commentators in the Symposium on New Democracy: The Creation of the Modern American State

It is truly an honor to have my new book New Democracy serve as the vehicle for these 12 diverse, thoughtful, and fully engaged commentaries on the history of American democracy and the rise of the modern American administrative and regulatory state. My special thanks to Nick Parrillo and the Yale Journal of Regulation for organizing this symposium and for selecting such a great group of smart and talented interlocutors. My response can only touch on a handful of the important issues constructively flagged throughout these extensive reviews. But I will carry so many other of these critical ideas and suggestions forward as I continue work on a multi-volume history of legislation, regulation, and administration in America

The American Law of Overruling Necessity: The Exceptional Origins of State Police Power

One of the most significant legal-constitutional moments in the history of the American republic occurred in the Confederation Congress on September 26 and 27, 1787. On those dates, the handiwork of the historic Constitutional Convention in Philadelphia was now laid before the United States in Congress assembled. And the momentous question for the extant official lawmaking body of the US government was what to do next. Under Article 1 3 of the Articles of Confederation, any alteration of the articles had to be agreed to by Congress and confirmed by the legislatures of every state. Notably, the Philadelphia convention had already decided on a radically different mode of ratification via conventions in only nine of the original states (arguably contravening the very article on which Congress officially recommended a Philadelphia convention in the first place). So what should Congress do with this document so laid before it? Should it independently debate the report anew? Could it amend the proposed constitution? Should it officially vote to approve or disapprove the document? This was a moment of historic constitutional decisionism