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.
Kenneth A. Bamberger,
Regulation as Delegation: Private Firms, Decisionmaking, and Accountability in the Administrative State,
56 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol56/iss2/1