Regulation as delegation: private firms, decisionmaking, and accountability in the administrative state.

Duke Law Journal, November, 2006 by Bamberger, Kenneth A.

ABSTRACT

Administrative agencies increasingly enlist the judgment of private firms they regulate to achieve public ends. Regulation concerning the identification and reduction of risk--from financial, data and homeland security risk to the risk of conflicts of interest--increasingly mandates broad policy outcomes and accords regulated parties wide discretion in deciding how to interpret and achieve them. Yet the dominant paradigm of administrative enforcement, monitoring and threats of punishment, is ill suited to oversee the sound exercise of judgment and discretion.

This Article argues that this kind of regulation should be viewed, instead, as regulatory "delegation" of the type Congress makes to agencies when it accords them the authority to fill...

Read the rest of this article with a Free Trial at HighBeam Research.

Premium Content Partnership | HighBeam Research provides an in-depth online archive library of reference works.