Several scholars in and around the field of legal history contributed working papers to a conference held in February 2008 on "Government and Markets: Toward a New Theory of Regulation.” Here are abstracts and links to several of those papers.
Mary O. Furner, University of California, Santa Barbara, From “State Interference” to the “Return of the Market”: The Rhetoric of Economic Regulation from the Old Gilded Age to the New
Words and ideas matter! Challenging progressive and pluralist interpretations of regulation policy, this paper explores the influence of economic theory and professional discourse in creating the contexts in which American policy makers and citizens considered relations between the state and the market. Rather than a compressed survey of the history of expert thinking about economic regulation, this paper identifies key “rhetorical moments” that launched a shift in the discourses of regulation and signaled a new policy era. I look at such moments between the opening of the “new liberal” era in the First Gilded Age and the “return to the market” in the late twentieth century. This paper relates shifts in expert and elite thinking on the role of regulation to the ideas and positions expressed in popular movements.Jessica Leight, MIT, Public Choice: A Critical Reassessment
Over the last several decades, public choice has become one of the most influential schools of academic thought that seeks to analyze the relationship between private interest groups and economic policy-making, spawning an abundance of both theoretical and empirical work. Despite its apparent dominance, however, public choice suffers from several serious flaws in both the way it theorizes the policy-making process and the way in which it marshals empirical evidence to support its analytical claims. Accordingly, developing rigorous theories of the policymaking process and testing them adequately remains a central unfinished research agenda for social scientists.Edward Balleisen, Duke University, Prospects for Economic “Self-Regulation” in the United States: An Historian’s View from the Early Twenty-First Century
Drawing on the profusion of studies about business self-regulation across the social sciences, this paper: places the recent appeal of self-regulation in historical context; reviews the primary intellectual justifications offered by its proponents (flexibility, cost-effectiveness, enhancement of civic obligation) and the contexts where it seems to work well (especially heterogeneous business environments characterized by large firms); considers the shortcomings of self-regulation identified by its critics (lack of sustained regulatory commitment, as well as fully democratic participation), and the contexts in where it falls short of furthering fundamental regulatory purposes; identifies general best practices for governmental monitoring of private regulation (especially the prerequisites for effective “meta-regulation”); and sketches a research agenda that might deepen understandings of this increasingly significant regulatory strategy, by scholars and policy-makers alike. Its chief argument is that a strategy of co-regulation among governments, affected businesses, and third parties offers the possibility of smarter regulation, but not necessarily less complex or costly regulation.Tony Freyer, University of Alabama, Deregulation Theories in Litigious Society: American Antitrust and Tort
Steven K. Vogel has shown that the practical results of deregulation since the 1970s have been paradoxical. A theory aimed at reducing regulation actually fostered it; a theory driven by internationalized markets facilitated national regulatory distinctiveness; and a theory premised on limiting governmental control of private business conduct depended on the government itself. In the United States, Pietro S. Nivola declared, the economy has become "singularly unfettered," but because "private litigants do much of the enforcing in the US . . . we wind up with smaller government but millions of civil suits. This paper examines Vogel's paradox and Nivola's assessment in light of antitrust and mass tort private actions within the Tobin Project program developed by the contributors to this volume.UPDATE: The papers are no longer available online. You may find them in this published volume.