Administrative-Law-Hills-Sp-07 - ADMINISTRATIVE AND...

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A DMINISTRATIVE AND R EGULATORY S TATE (A DMINISTRATIVE L AW ) – F IRST Y EAR P ROF . R ICK H ILLS N EW Y ORK U NIVERSITY L AW S CHOOL , S PRING 2007 I. I NTRODUCTION TO THE ADMINISTRATIVE STATE A. Historical Overview of the Rise of Regulation i. Legislative branch, executive branch, judicial branch and agencies make up the regulatory state ii. First agency created in the late 19 th c. iii. th branch of gov’t because a. it is quasi-legislative – Agencies promulgate regulations for a particular sector, the authority for this comes through Congress. The rules are prospective and made through i. formal rulemaking ii. notice-and-comment (informal) rulemaking iii. formal adjudication iv. informal adjudication b. it is quasi-judicial – they grant licenses and permits and rule on situations B. Development of Administrative Gov’t and Law in USA i. Common Law Regulatory regime a. Pearson v. Post i. Issue : should a state use regulatory action to stop an interloper from intervening in a fox hunter’s activities? ii. Common Law created a scheme for damages schedule, precedential value that determines future conduct of foxhunters and interlopers. ii. Evolution to legislative/statutory regime and the creation of agencies a. Pre - New Deal : there were some legal opportunities, but the role fell to judiciary to control regulatory process in private market and regulation only came in the event of failure b. Post- New Deal : This was watershed event in creation of modern regulatory state. Trust in private market was weakened and a new belief emerged that there was a legitimate and proper role for gov’t and legislature. The private market needs to be a player in the allocation and distribution of resources c. 50s and 60s : Feeling that bureaucracy could solve all problems d. 70s and early 80s : De-regulation, in response to the costs inherit in the regulatory process e. Today : Balance of letting the federal gov’t be experts and problem solve ( command and control ) but also allowing the private market to operate robustly within the regulatory state C. Why Regulate (Justifications)? i. Market failures a. Monopolies and lack of information lead to inefficiency and regulation can increase efficiency i. Efficiency = allocation of resources in society ii. Inefficiency = distortion of the optimal economic marketplace result from supply and demand and wasteful use of resources ii. Redistribution a. Change result of market through regulation when result is not moral or just b. Ex: How much private housing should we have? Can’t let owners of resources decide c. Redistribute through tax and transfers. d. Ex : NY rent control. ii.
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Administrative-Law-Hills-Sp-07 - ADMINISTRATIVE AND...

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