Beginning a substantial effort to develop a line of works for law school use, Oxford University Press just published “The Regulatory and Administrative State” by Lisa Heinzerling and me. We developed the course book over a period of more than a decade teaching a course in Georgetown’s Curriculum B, which we called “Government Processes.” Here I’ll describe what the book does and my personal take on why we think it’s suitable for use in courses aimed at providing first-year law students with an introduction to regulation, administrative law, and statutory interpretation. (I’ll use the authorial “we” throughout, but it’s my take, and Professor Heinzerling might have a different view on some, indeed on many, of the things I discuss.)
We gave the book its title to signal that this was not a scaled-down or introductory administrative law book. We begin, not with topics in administrative law, but with the “classical,” that is, common law, mode of regulation through the imposition of liability in tort and contract. We do this for pedagogic and intellectual reasons. Pedagogically, efforts to introduce administrative law and statutory interpretation into the first year typically have foundered on the “trans-substantive” nature of those fields – that is, the cases and problems typically come from quite disparate fields of law, leaving students confused about exactly what they are supposed to be learning. That problem infects even second- or third-year courses in statutory interpretation, but is a smaller problem in upper class administrative law courses because students there already have had a fair amount of exposure to substantive law, which is not true of first-year students. If, as some have done, one tries to solve that problem by focusing on a particular field like labor law, students tend not to understand that they are learning statutory interpretation and administrative law, and think that the course is one in labor law. Professor Heinzerling and I address this difficulty by defining our field of interest as risk-regulation, which includes topics in the regulation of risk in the workplace, the environment, and the (food) market. This also has the pedagogic advantage of dealing with subjects that students typically find substantively interesting.
That alone wouldn’t explain why we start with common-law regulation. One reason is that we think it’s important to get the message across – or to reinforce the message that students are getting in their common law courses – that contemporary statutory and administrative regulation is continuous with classical common-law regulation, and that the reasons for the displacement of one by the other are more process-based than substantive. At most – and we could have done more about this in the course book than we did – there are ways of regulating that might be somewhat easier to pull off through the administrative process than through the judicial one. So, we spend quite a bit of time developing the rationales for regulation of risk. (This doesn’t get us to all the possible justifications for regulation, but the field of risk-regulation is broad enough to get us quite a bit. And, as I note below, the book is conceptualized so as to allow others to supplement it with material from other substantive fields.) Students will see, we think, that the modern regulatory and administrative state doesn’t do things conceptually different from what the common law state did.
In addition, we think it important to show how the modern administrative state emerged out of the common law state, and specifically what problems associated with common law regulation of risk are addressed by administrative regulation. That creates what we hope is a natural flow into statutory interpretation and administrative regulation: Exactly how does the modern mode of regulation attempt to address the problems we’ve seen with common law regulation? And – and here’s where the standard administrative law topics come in – what are the problems associated with risk-regulation through administrative regulation? Because students will have already examined the justifications for regulation and the problems with common law regulation, identifying problems with administrative regulation leaves them in a position – the right position, we think – to think about which set of problems is more severe, rather than, for example, thinking that regulation should be abandoned despite its justifications because administrative agencies and legislatures are pervaded by public choice problems.
We think that our approach overcomes, or at least substantially lowers, the hurdles faced by prior efforts to introduce regulation and administrative law into the first year curriculum. Because of its emphasis on the justifications for regulation (again, as a way of providing a glue across substantive topics), our book has less material on administrative law as such than, for example, administrative law course books do. We think that we’ve made the right pedagogic and intellectual choices in doing so, but there are other mid-level ways of introducing statutory and administrative material into the first year curriculum that have some promise: treating the materials as a way of introducing students to a distinctive way of reading, for example, or to general problems of separation of powers. We think that teachers who were so inclined could use our materials to do those things too, and indeed we do a reasonable amount ourselves. (The book has quite a bit about public choice analysis of the legislative and administrative processes, for example, and presents materials discussing the relevance of that analysis to normative issues in statutory interpretation.) We think we’ve struck a better balance than existing materials do – and, indeed, our hope is that the book will tap a latent demand for materials that could be used in curricular revisions elsewhere.
Finally, we think that the book is designed so that someone interested in some specific regulatory topic other than workplace safety and health or environmental regulation could readily use the book with self-generated supplements. As we see the book, it has a spine (common law regulation, justifications for regulation, statutory interpretation, administrative regulation, etc.), to which we have attached ribs dealing with risk regulation. We think that those particular ribs could be replaced by others, without reducing the pedagogic or intellectual gains from using the book. (It’s easy to imagine how this could be done were the book to exist in a purely electronic version, but, we learned in the course of preparing the materials for publication, doing so poses serious technical problems for commercial publishers.)
Of course, comments on this post or on the book itself are welcome, either here or via e-mail to me.