89 Tex. L. Rev. See Also 1 (2010)

handle is hein.journals/seealtex89 and id is 1 raw text is: Texas Law Review
See Also
Agency Hygiene
Nicholas Bagley*
Agency capture is a little like the weather: everybody complains about
it, but nobody does anything about it. It's not hard to see why. Once capture
becomes an entrenched feature of agency culture, it can be difficult to uproot.
By definition, the political dynamic will reflect an unappealing mix of well-
organized, well-heeled interest groups and a relatively apathetic and
disinterested public.  Efforts by Congress or the Executive Branch to
eliminate capture are unlikely to pay political dividends and will probably
antagonize powerful interest groups.   Complacency seems the better
course-for everyone but the public at large.
The resistance of capture to political correction suggests that the most
effective way to address capture will be to create conditions in which it is
unlikely to flourish. On that front, Rachel Barkow has made an exceedingly
important contribution. She has provided nothing less than an instruction
manual for conscientious legislators who, when grasping the rare political
opportunity to create or reshape an agency, aim to insulate that agency from
undue interest-group pressure. And she has done so by moving the debate
over insulation away from its myopic focus on formal independence from
presidential control to the on-the-ground bureaucratic conditions that
profoundly affect agency decisionmaking.
* Assistant Professor of Law, The University of Michigan. I wish to thank Rachel Barkow,
Kristina Daugirdas, David Fontana, Scott Hershovitz, Nina Mendelson, Sallyanne Payton, and
Ricky Revesz for their thoughts and feedback.
1. Rachel E. Barkow, insulating Agencies: Avoiding Capture through Institutional Design, 89
TEXAs L. REV. 15 (2010).

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