The Scholarly Commons

 

Title

Coercive State Discourse and the Rise of Self-Regulation

Document Type

Article

Publication Date

2-9-2009

Abstract

The U.S. administrative state has been involved in a decades-long regulatory reform project encompassing both a shift away from what have been characterized as “command-and-control” approaches to regulation and toward approaches that are more market-oriented, managerial, participatory and self-regulatory in their orientation. Through a content analysis of the nearly 1,400 law review articles that comprise the legal critique of regulation between 1980 and 2005, I demonstrate that “voluntary” or “self-regulation” approaches that enlist regulated entities and citizens to perform core governmental functions like standard-setting, monitoring and enforcement have emerged from this experiment with particular prominence. I also show that, within this debate, the most salient critiques of regulation concern not the costs or efficiency of regulation, but rather the coercive nature of government regulation. Using both statistical and interpretive inference, I argue that self-regulation is the product of a pervasive anxiety about state coercion. I conclude by suggesting that framing the problem of regulation in these terms distorts the dialogue about regulatory solutions, and I call for a more explicit engagement with state coercion discourse in order to either move beyond it or to address any real concerns it raises.