THE REGULATORY STATE

THE WILL TO PUNISH

The New Criminal Classes: Legal Sanctions and Business Managers
(National Legal Center for the Public Interest, June 1997)
The past 20 years have seen "a spectacular expansion in the scope and the intesity of the nation's apparatus for punishment." This quote does not refer to the battle against street crime. It is talking about enforcement of regulations on environmental protection, medical practice, financial institutions, government contracting, and many other areas. The new targets of the impulse to punish are not muggers but the nation's managers, entrepreneurs, professionals, and landowners. And the appratus encompasses more than just criminal sanctions. Hefty civil penalties, asset forfeitures, damage payments, and other devices to cause financial pain are an important part of the system. This article examines a troubling trend.

Adminstrative Crimes and Quasi-Crimes
(statement before the Subcommittee on Commercial and Administrative Law, Committee on the Judiciary, U.S. House of Representatives, May 7, 1998)
Testimony based on "The New Criminal Classes." Its theme: "Both parties in Congress seem to have embraced an assumption that the solution to every perceived problem is not just a new round of laws and regulations, but severe punishments for any non-compliance, however inadvertent or minor. It is not enough to tell the transgressor to comply or to make him pay for any actual harm caused by a violation. He must be made to suffer."

Computer Games
(From Reason, November 1997)
and
The Schools and Libraries Fund: Five Months Old and Fodder for Scandal
(From the Federalist Society's Telecommunications & Electronic Media News, Fall 1998)
The government is subsidizing internet access by schools and libraries. But there is a worm in the apple: The program creates numerous incentives for creative accounting, then imposes criminal penalties on those who fall. We can expect to soon see school principals join the S&L executives, Medicare managers, and land-owners in the pokey.

Just What Crime Did Columbia/HCA Commit?
(Wall Street Journal, RULE OF LAW COLUMN, August 20, 1997)
More on how the government is turning disputes over cost accounting and paperwork into criminal prosecutions, this time in the context of Medicare.

Slowing Down the Flow
(From Washington Times, August 23, 1997)
The ultimate Congressional silliness: Low-flow showers and low-flow flush toilets, enforced by the majesty of the criminal law.

REGULATORY LAW

New Wine for a New Bottle: Judicial Review in the Regulatory State
(From the Virginia Law Review, Vol. 72, No. 2, March 1986) (47 pp.)
Battles over judicial review of agencies that were supposedly settled by the Administrative Procedure Act of 1946 continue to be re-fought. The piece argues that the legal system's convention of thinking in terms of an abstract entity called "an agency" creates immense confusion, given the diversity of agencies and their characteristics, and that tighter focus is needed on the particularized incentives that affect different agencies. it also argues that courts haveconcentrated on their own role as reviewers of agency actions while ignoring the importance of other control mechanisms. (This article is not on the web; to obtain a copy, email the Regulatory Policy Center.)

Repealing Rules
(From Regulation, May/June 1983) (5 pp.)
Thoughts on the legal ins-and-outs of agency efforts to repeal existing rules. This piece lost relevance after the election of 1988, when the drive to deregulation ran out of steam, but political events may resurrect it someday. (This article is not on the web; to obtain a copy, email the Regulatory Policy Center.)

MISCELLANEOUS

Crass Act
(From The New Republic, April 19, 1993) (3 pp.)
The Perils of the Family Leave Act. "Increasingly, managers are beginning to think that having employees is a bad idea and that the sensible thing is to have as few as possible." (This article is not on the web; to obtain a copy, email the Regulatory Policy Center.)

Escape Mechanisms
(From Reason, August/September 1997)
A review of Robert Reich's book Locked in the Cabinet. If this book summons up the best case for government that one of America's most noted liberals can make, then the left is needed in sad shape. Reich also fallows the leadership of his president, Bill Clinton, in his casual attitude toward veracity.