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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 show that the most salient critiques of regulation concern neither its cost nor its inefficiency, as many have assumed. Instead, they express a deep-seated anxiety about the fundamentally coercive nature of administrative government. In addition, 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 emerged from the reform debate with particular prominence. Using both statistical and interpretive inference, I argue that framing regulation as a problem of coercive state power created a logic of governance uniquely suited to self-regulatory solutions that promised non-coercive ways of governing. After presenting my empirical analysis, I situate the coercive state rhetoric of late-twentieth-century regulatory reform in broader historical context, highlighting its continuities and discontinuities with the coercive state rhetoric that has infused debates about expanded federal governance throughout U.S. history: at the founding, during the New Deal, and in the postwar period. I argue that proponents of government regulation must recognize and engage this deep-seated anxiety about state coercion. Before a convincing and durable case can be made for any particular regulatory policy, a case must be made for the state.

Publication Citation

Hastings L.J. (forthcoming 2012)