Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State, 56 Duke L.J. 377 (2006)
Administrative agencies increasingly enlist the judgment of private firms they regulate to achieve public ends. Regulation concerning the identification and reduction of risk--from financial, data and homeland security risk to the risk of conflicts of interest--increasingly mandates broad policy outcomes and accords regulated parties wide discretion in deciding how to interpret and achieve them. Yet the dominant paradigm of administrative enforcement, monitoring and threats of punishment, is ill suited to oversee the sound exercise of judgment and discretion. This Article argues that this kind of regulation should be viewed, instead, as regulatory "delegation" of the type Congress makes to agencies when it accords them the authority to fill in the details of ambiguous statutory mandates. Administrative law's "delegation" paradigm, unlike its "regulation" counterpart, relies on decision processes to channel discretion in the service of public goals. Informed by the comparative capacities of different institutions, it structures delegated decision-making to promote rational and accountable policy implementation. The Article then applies this administrative law approach to the exercise of delegated discretion by regulated firms. Drawing from the literature on judgment and decisionmaking in organizations used increasingly by corporate law scholars, it suggests that the efficient structure of profit-making firms will, in a subset of cases, systemically blind decisionmakers to the types of risk and change in which regulation is interested, and lead to unaccountable regulatory decisions. Finally, I suggest ways in which administrative law might learn from recent research on organizational learning that examines how decisionmaking in firms can be structured more effectively, to incorporate additional accountability tools through regulatory design, third-party relationships, and relations between administrative agencies and those they regulate.