Regulation and the United States Corporation: An Alternative to Law-and-Economics

Abstract

The governed ought to pay attention to what governors do rather than what they say. So said Nixon's Attorney-General. That is not easy advice for a lawyer to apply, though lawyers see law as an instrument of government, a tool for regulating human behavior. Law, for lawyers, consists of precedents, any of which a court can distinguish "on its facts," even when it is otherwise applicable; and the facts courts find—the basis on which the law claims accurately to reconstruct a long-ago event—are the product of technical and often seemingly arbitrary rules of evidence. Understanding what government does requires information both from the people being regulated and from those who do the regulating. However, regulators are administrators as well as judges, and most analyses of administrative regulatory activity tell a story of conflict between technical experts and political appointees. That story has informed American political debate since the days of the New Deal, and I intend not to burden my readers with simply one more version of an oft-told tale. To tell a different story, however, requires me to make clear the concepts and models which define the information I wish to present. Thus, I seek to convey the state of mind in terms of which I undertake this Article. Forging such an understanding with the reader requires me to establish many correlations: between words and content, form and substance, personal experience and objective reality. I begin by addressing the philosophical question of the nature of the reality humans communicate to each other.