Document Type

Article

Publication Title

Columbia Law Review

Publication Date

2005

Page Number

2029

Keywords

administrative law, environmental law, private agreements, corporate transactions

Disciplines

Administrative Law | Environmental Law | Law

Abstract

This Article proposes a new conception of the administrative regulatory state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: private firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that private actors play an increasing role in the traditional government standard setting, implementation and enforcement functions. This Article demonstrates that the private role in each of these regulatory functions is far greater than others have identified. Furthermore, the Article argues that only when this private regulation is considered can the accountability and efficacy of the administrative state be judged. Using environmental regulation as an example, the Article examines a wide range of empirical data to demonstrate that public law requirements spawn a vast body of private agreements. These second-order agreements range from corporate acquisition and credit agreements between private firms to "good neighbor agreements" and other agreements between private firms and non-profit groups. Second-order agreements often concern not only environmental regulation, but labor, worker safety, health care and other regulatory areas. The Article shows that second-order agreements alter the types of parties that have interests in regulatory outcomes, the incentives they face, and the performance of the regulatory regime. The recognition of second-order agreements thus suggests a new agenda for empirical and theoretical work on the public regulatory measures that will generate the optimal blend of public and private regulation.

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.