Making Regulation Work: Policies, Techniques and the Abolition of Property Restrictions. Cet article n’est pas disponible.Making Regulation Work: Policies, Techniques and the Abolition of Property Restrictions

Everyone knows that regulation is the essential feature of modern government. The global condemnations that have become politically popular are insincere, and thus irresponsible. They distract us from the important task of improving the regulatory processes on which we depend. This book focuses on those improvements. Most are set in the context of the U.S., but all have general applicability.
One area of potential improvement involves policy making. The process by which legislatures design regulatory statutes needs to be changed. Instead of beginning with a submitted draft, they should employ the policy making process: define the problem, generate alternatives and choose the most promising. Potential but uncertain disasters need to be anticipated and addressed by policies that would combat them but also provide benefits if they do not materialize. Current reliance on command needs to be balanced by cooperative strategies aimed at obtaining voluntary cooperation.
Second, the techniques by which regulation is implemented need improvement. The historical evolution of democratic control on executive action provides external constraints but not internal mechanisms, and these need to be developed. Instead of thinking in terms of accountability, we should focus on supervision. We might establish a separate agency that can investigate the performance of existing agencies and work cooperatively with them to combat their oppressive tendencies. The widespread use of administrative guidance is beneficial, but should be constrained when matters of public controversy are involved. In some cases, administrative action needs increased insulation from political pressures through specialized modes of decision making.
One constraint that is deleterious, not beneficial, is the protection of so-called property rights. There are no such rights in our legal system apart from those that are created by positive law and subject to revision or abolition by that law. These rights are no more than a means to regulate resource use, and must yield to other means of regulation in many situations. The U.S. Supreme Court’s current doctrine of regulatory takings misunderstands this basic relationship and misinterprets the Constitution.

About the Author:
Edward L. Rubin is University Professor of Law and Political Science at Vanderbilt University. He has taught at Berkeley Law School, the University of Pennsylvania Law School and Vanderbilt Law School, where he served as Dean from 2005 to 2009. He is the aiuthor of Soul, Self and Society: The New Morality and the Modern State (Oxford, 2015); Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton, 2005), numerous other books, edited volumes, academic articles, and The Heatstroke Line (Sunbury, 2015), a science fiction novel about climate change.