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12 Admin. L. News 1 (1987)

handle is hein.journals/admreln12 and id is 1 raw text is: ADMINISTRATIVE LAW NEWS Winter 1987 Published by the SactOn-otAdministrative Law, American Bar Association, Volume 12, Number 1 Theories of Administrative Regulation by Ronald A. Cas* Over the past two decades, increasing concern over the effects of government regulation has prompted renewed interest in explaining how regulatory schemes function and why they are adopted. General descriptions of regulatory programs' creation and op- eration have come to be known as theories of admin- istrative regulation. Use of the term theory here takes some liberty with its ordinary meaning, as there is no serious prospect that current descriptions of ad- ministrative regulation can predict meaningfully what measures will be passed by the legislature or how those measures will be implemented by administra- tors. The theories lack of strong predictive power is not unexpected, given the range of government activ- ity and the complexity of its causes and cures. Like weather forecasters, regulation theorists can describe some aspects of an event that has occurred and can extract some lessons that are useful at the broadest level for understanding future events; but the number of forces that together determine government behav- ior, like those that dictate the weather, provide too many possible permutations and combinations to al- low accuracy in more detailed augury. The theories described here, thus, contain useful insights, but none can carry us nearly so far as we would like to go. The major theories of administrative regulation can be classified under four headings: public interest ra- tionales, two different types of public choice theories, and explanations focused mainly on individual per- sonalities and interests. The sketches of the theories below endeavor to do equal injustice to each. Public Interest Rationales Public interest theories are the oldest and in many ways the most attractive. They start not with obser- vation of how legislators and administrators behave (continued on page 6) *Professor of Law, Boston University School of Law. Sunstein Receives First Award for Administrative Law Scholarship At the October meeting of the Section's Council, Professor Cass R. Sunstein was presented with the first annual award of the Section for administrative law scholarship. Professor Sunstein was honored for his article, Interest Groups in American Public Law, published in 1985 in the Stanford Law Review. The choice of Professor Sunstein's article had been announced by Professor Thomas D. Morgan at the August Council meeting. At that time, Professor Mor- gan, on behalf of the Administrative Law Scholarship Award Committee, explained the procedure followed by the committee. Besides Professor Morgan of Emory University, the other members of the committee are William H. Allen (chairman) of Covington & Burling and Neil R. Eisner, Assistant General Counsel for Regulation and Enforcement, Department of Trans- portation. First, the committee considered general criteria, de- ciding to seek the best article or book that explored an important question of broad interest in adminis- trative law and analyzed that question in a new and creative way. The committee also determined that to be eligible, an article would have to be published in a law review that either bears the year of the award or was actually received in law libraries during that year. A book would be eligible in the year of its copy- right. Next, the committee tried to define the field of po- tential candidates for the award. Members checked the Index to Legal Periodicals and the University of Washington Law Library periodicals list, and com- piled a list of approximately twenty-five articles that appeared both to meet the general criteria and to have a chance of being among the best in the field. Council members and a few others who keep up with the (continued on page 8) In This Issue Current Issues in Disability Claims ............... 3 Committee Reports ............................... 9 Recent Articles of Interest ........................ 10 Copyright © 1987 American Bar Association Produced by the ABA Press

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