Gary C. Bryner - The Constitution and the Regulation of Society
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Library of Congress Cataloging-in-Publication Data
The Constitution and the regulation of society / edited by Gary C. Bryner, Dennis L Thompson.
Includes index. 1. Interstate commerce. 2. United StatesConstitutional law. I. Bryner, Gary C., 1951 . II. Thompson, Dennis L KF4606.C55 1988 342.73'02dc19 {347.3022}88.457 CIP
ISBN 0-88706-851-0 ISBN 0-88706-852-0 pbk.
Brigham Young University, Provo, Utah 84602 1988 by Brigham Young University. All rights reserved Printed in the United States of America
Distributed by State University of New York Press, State University Plaza, Albany, New York 12446-0001
Page v
Contents
Introduction
1
I Liberal and Conservative Theories of Regulation
Theodore J. Lowi
7
Discussion
II The Secret of Safety Lies in Danger
Aaron B. Wildavsky
43
Discussion
III Freedom and Regulation in a Free Society
A. Don Sorensen
67
IV Collective Identity and Constitutional Power
Sheldon S. Wolin
93
Discussion
V The New Procedure
Owen M. Fiss
129
VI The Regulation of Mediating Structures
Bruce C. Hafen
147
Discussion
VII Bureaucracy and Constitutional Development: The Duty to Risk
Louis C. Gawthrop
181
VIII Prudence and Rationality under the Constitution
Martin M. Shapiro
213
Discussion
Index
251
Page 1
Introduction
Government regulation reaches virtually every area of social and economic activity. Governmental efforts to control and direct decisions range from the content of the food we eat to the environmental systems in which we live. The regulatory authority of government includes the power to issue administrative rules and regulations that have the force of law, to enforce these legal requirements on individuals and firms, and to adjudicate the claims and complaints of those to whom the regulatory activity is directed.
The great burst of regulatory activity in the 1970s was greater than in any other period of American history. In that decade, twenty-one new regulatory agencies were created and some 120 major regulatory laws were enacted. The number of employees in regulatory agencies grew from 27,600 in 1970 to 87,500 in 1979. Spending in these agencies increased from $866 million to $6.94 billion, an increase of 800 percent. The number of pages in the Federal Register that records all proposed and final regulations mushroomed from 9,562 in 1960 to 74,120 in 1980. By 1980, according to one count, there were 116 federal agencies involved in regulatory activities.*
This growth in regulatory activity has prompted numerous efforts to evaluate and reform regulation, to make regulation more efficient and effective, or to reduce the costs of compliance. Both the Carter and Reagan administrations, while fundamen-
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