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15 Cardozo L. Rev. 909 (1993 - 1994)
Administrative Agency Obsolescence and Interest Group Formation: A Case Study of the Sec at Sixty

handle is hein.journals/cdozo15 and id is 933 raw text is: ADMINISTRATIVE AGENCY OBSOLESCENCE AND INTEREST GROUP FORMATION: A CASE STUDY OF THE SEC AT SIXTY Jonathan R. Macey* INTRODUCTION A fundamental precept of American law and jurisprudence is that laws must change to meet the needs of changing times.' In particular, the common law system of judging was thought to consti- tute a uniquely effective mechanism for dealing with the demands posed by rapid change. As Guido Calabresi presciently has observed, during the nineteenth century judges creatively manipulated and changed common law rules in reaction to changing circumstances, and thereby the common law was openly and legitimately kept up to date.2 But, as Dean Calabresi has observed, times have changed. The United States has become a nation dominated by statutes rather than by common law rules.3 With the emergence of statutes has come the need to cope with the problem of statutory obsolescence in order to retain some of the flexibility and dynamism achieved through the process of common law judging. Scholars have suggested a wide variety of strategies for dealing with statutory obsolescence. Sunset laws, which would limit the time period for which statutes are in force,' increased constitu- tional scrutiny,5 judicial updating,6 and even direct majoritarianism7 all have been proposed as mechanisms for dealing with the problem of obsolescence. Thus, for example, Dean Calabresi recommends giving common law courts the power to treat statutes precisely the way they treat common law rules. This Article does not attempt to add to the rich literature on statutory obsolescence. Rather, its goal is to observe that the twenti- eth century has witnessed the birth of another phenomenon-the modem administrative agency-whose existence presents problems of * J. DuPratt White Professor of Law, Cornell University. GuIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 3 (1982). 2 Id. at 184. 3 Id. passim. 4 Id. at 59-65. 5 Id. at 8-15. 6 Id. at 81. 7 Id. at 70-72. 8 See id. at 82.

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