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Improving the Environment of Agency Rulemaking: An Essay on Management, Games, and Accountability

1994; Duke University School of Law; Volume: 57; Issue: 2 Linguagem: Inglês

10.2307/1192051

1945-2322

Jerry L. Mashaw,

Legal and Constitutional Studies

As late as the presidency of John F Kennedy, the principal image of federal administrative action was the adjudication of a case-a prosecution by the Federal Trade Commission, an enforcement action by the National Labor Relations Board, a licensing proceeding before the Federal Communications or Federal Power Commissions, or a rate proceeding at the Interstate Commerce Commission.' Thirty years later, when U.S. citizens think of regulation, they tend to think of the adoption of general rules concerning workplace safety by the Occupational and Safety Health Administration (OSHA), or of rules governing air or water quality by the Environmental Protection Agency (EPA).2 Nor is rulemaking the exclusive province of post-New-Frontier agencies designed with that regulatory technique prominently in mind. The politically salient activities of old line agencies-Federal Trade Commission regulation of charm school and funeral home practices or Federal Power Commission deregulation of natural gas pipeline prices-often feature rulemaking rather than adjudication. This paradigm shift was in part evolutionary, but it also contained critical elements of conscious redesign of the administrative process. Regulatory reform movements in the 1960s emphasized rulemaking and extolled its virtues of