Students of the policymaking process are familiar with the fashion in which the policies underlying crisis-driven legislation are gradually eroded during the implementation process. A substantial body of administrative-law scholarship stands for the proposition that policymaking in administrative agencies is not confined to the formal structures of administrative law as envisioned by the drafters of the Administrative Procedure Act. This Article suggests that in this era of deep divisions over the proper role of government in society, high-stakes rulemaking has become a "blood sport" in which regulated industries, and occasionally beneficiary groups, are willing to spend millions of dollars to shape public opinion and influence powerful political actors to exert political pressure on agencies. In addition, the implementation game has attracted a wider variety of players and has spread to arenas that are far less structured and far more overtly political than the agency hearing rooms and appellate courtrooms of the past. Employing as an illustration the Federal Reserve Board's attempt to implement the Durbin Amendment to the Dodd-Frank Wall Street Reform and Consumer Protection Act, this Article suggests some general characteristics of this new model of high-stakes rulemaking, provides some tentative thoughts on the implications of this model for administrative law, and offers some possible responses to the phenomenon aimed at taming some of its least attractive characteristics and at ensuring that it does not further erode public trust in the administrative process.
Thomas O. McGarity,
Administrative Law as Blood Sport: Policy Erosion in a Highly Partisan Age,
61 Duke Law Journal
Available at: http://scholarship.law.duke.edu/dlj/vol61/iss8/2