Volume 49, Number 2
Spring 1997 - Abstracts

Analyzing Government Regulation
- Joseph P. Tomain
- Sidney A. Shapiro


The "headless fourth branch of government" has become a focal point of modern elections. Politicians pledge to contain this expanding and unruly branch of government. The authors of this article set out to understand this unpopular "fourth branch." To achieve this, the authors analyze the present literature, the conclusions drawn from it, and the numerous issues remaining for study.

I. The End of Administrative Law Scholarship

Previous administrative legal scholarship has given a strong basis for further study. However, to understand government law in the future, one must observe substantive policies and politics more closely. Scholars must have a broader understanding beyond the formal rules of administrative law. In the past, people have recognized the need to study administrative law by raising essential questions about the nature of government. However, they became confused and tried to answer these questions in strictly legal views. "As long as administrative law scholars attempt to discuss these larger issues of government regulations within the traditional legal formality of administrative law doctrines and norms, they will not and cannot address the substantive and normative issues that underlie the regulatory state."

II. The Regulatory Process

A better understanding of administrative law looks at the interaction between agencies and the legislature. Most frequently, Congress passes legislation in broad terms which leaves room for the agencies to implement that law. The legislation develops from the area where policy and politics overlap. Regulatory decisions also come from overlapping policy and political concerns. However, agencies have less discretion than Congress because of the enabling clause of the pertinent legislation. Furthermore, other factors constrain agencies such as institutional routines, bureaucratic culture, professional training, and agency resources.

The interactive model proposed by the authors offers two insights to the administrative process. First, a scholar can make predictions by looking at the congruence of policy, politics, and institutional factors. Secondly, this model rejects a purely public choice orientation that stipulates that decisions result solely from self-interest. The interactive model emphasizes the impact of institutional factors and policy arguments and the important implications these two variables have on the study of administrative law. These implications represent a study of administrative law.

The methodology shows the interaction of the variables and exposes some patterns. Outcomes are the product of the efficacy of policy evidence, the political feasibility of the supporting arguments, and the impact of institutional factors. The model predicts which proposals will fail. Proposals that do not have policy, political, or institutional support will fail.

III. Regulatory Analysis

Policy arguments originate in political communities which includes such groups as staffers, interest groups, and academics. The ideas that survive coincide with the political climate, technical feasibility, and consistency with professional values. Study of the administrative world must look at the interaction of politics, policy, and laws.

Unlike most legal fields, regulatory analysis should look at prior statutes and regulations instead of case law. By doing this, one can ascertain patterns in regulations. There is a limited number of justifications for government regulations and a limited number of tools with which to implement the regulations. By locating the patterns and tools in the administrative process, an understanding of the process becomes simpler.

IV. Regulatory Justifications

The first question is whether there were economic justifications for the regulation. Most modern debate centers on the use of economic justifications. However, noneconomic values matter. Equity and fairness are common examples of noneconomic factors that play an important role. It is impossible to decide which factor will trump another, but to understand regulatory decisions completely one should notice each factor.

V. Match and Mismatch

Economic regulation addresses three market failures: natural monopoly, excessive competition, and economic rents. Agencies use two tools regarding economic regulations: price controls or entry and exit controls.

Social regulation examines four market failures: externalities, inadequate information, scarcity, and public goods. The government uses regulatory or allocative tools.


Proper regulatory scholarship looks at the tools and goals of the regulatory state. Identified patterns are important to understand because they form the basis of all regulations. Good analysis must observe policy factors. Scholars should also notice political and institutional factors. By observing political, institutional, policy, and legal issues, as well as the tools used and common patterns, a complete understanding of administrative law can develop.

Abstract by Shaun Whittaker

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