The Evolving Federal Approach to Private Legislation and the Twilight of Government

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SSRN Cleveland-Marshall Legal Studies Research Paper


Standards, standard setting organizations, standards development organizations, SSOs, SDOs, technology, American National Standards Institute, ANSI, National Institute of Standards and Technology, NIST, National Bureau of Standards, NBS, public private distinction, privatization, outsourcing


Among the most significant behaviors in the United States today is one of the least known and least understood: private regulatory conduct, commonly called standard setting. The federal government has a policy of sorts to address this phenomenon, which has gradually evolved throughout the past century. That policy, however, is a complex, highly disaggregated collection of tenuously connected initiatives, sometimes at cross-purposes with one another. Both for this reason and because standard setting itself remains a seriously undertheorized phenomenon, the federal approach contains certain problems. It is one goal of this paper to piece together the variety of relevant policy instruments to see how they might work together, to provide some sorely needed theoretical consideration, and to consider what might be good or not so good about the situation.

But the paper has a much larger focus as well. The contemporary world of private regulation can be understood only with an appreciation of the federal government's rapidly and drastically changing relationship with private markets. A second major objective of the paper is therefore an analysis of the allegedly new privatization agenda and the ongoing American romance with the private. Of particular concern is the government's massive but little noticed outsourcing efforts, an ironic result of which being that government has actually grown much larger and more clumsy, and can no longer adequately oversee its own contract bureaucracy. In any event, perhaps the most important insight of the study is that the private to which regulatory functions will be ceded is not the individuated, efficiently incentivized world of market transactions envisioned in economic models and prosaic political rhetoric. Rather, those functions will be ceded to private bureaucracies much like the public ones they replace, differing only in that they lack even a nominal obligation toward the public interest.

Thus, while it seems inevitable both that traditionally defined government will continue shrinking and that more and more regulatory work will be handled by private groups, it is not true that the void left by the withdrawal of one regulatory authority will be filled by private market transactions. Rather one bureaucracy will simply be replaced with another. Regulatory nature, at least in today's world, abhors a vacuum.


No. 05-117