Document Type

Article

Publication Title

Yale Law Journal

Abstract

This Article aims to clarify the background understandings that inform and structure regulatory and administrative law - fields of law long criticized as undisciplined and unordered. A great appeal of the law and economics movement was its promise of a single jurisprudential framework sufficiently general and trenchant to provide a unifying order, here and elsewhere. That movement has provoked competing unitary theories. The inconclusive battle among these theories has reawakened skepticism as to the possibility of any successful unitary theory. The effort to structure law is now shifting to complex theories composed of several different conceptions of legal ordering. Such theories are symptomatic of what we might call a post law-and-economics era. They try to avoid procrustean distortions by responding to the law's richness and intricacy without lapsing into nominalism. This Article is part of this emerging genre. Although not offering a fully developed theory, it argues that administrative and regulatory law reflect several competing background understandings of the ends of government: the protection of entitlements, the promotion of production, and the nurture of non-commodity values. It shows how these three conceptions are related to American liberal traditions of law and political theory, and to the problems in reconciling regulation with liberal principles. A principal aim of the Article is to develop the concept of non-commodity values and show that their nurture is, and should be, an important objective of regulatory and administrative law. Part I examines the general relationship between the liberal tradition and regulation. Part II discusses and rejects the minimalist liberal thesis that regulatory statutes should be interpreted as "deals" among competing private interests. Parts III and IV discuss two other conceptions of the proper role for regulation and administrative law in the liberal state-protection of entitlements and maximization of wealth-and discuss the limits of their explanatory and justificatory power. Parts V and VI discuss the proper role of non-commodity values in regulatory and administrative law. The discussion throughout relies on examples from environmental and broadcast regulation.

First Page

1537

DOI

https://doi.org/10.2307/796187

Volume

92

Publication Date

1983

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