The Modern Regulatory State
History 365D.01/Public Policy 219D.01/Political Science 340D.01/NSOE 365D.01
Professor Edward Balleisen
Duke University, Spring 2015
Tues./Thurs.1:25-2:40, in the Link
Sections on MONDAYS
Office Hours: Wednesdays, 10:30-12:00, von der Heyden Pavillion
Please take note of the unusual schedule for class times!!!
The institutional workings of the regulatory state remain something of a black box even to many highly educated persons and policy elites. Scholars, textbook writers, and the press pay much more attention to electoral politics, statutory law-making, executiveadministration of public works and social services, and the workings of courts, than they do to the dynamics of administrative regulatory governance. But a great deal of the policy-making that structures our world (environmental rules, financial standards, health and safety requirements, constraints on monopoly, and enforcement mechanisms for all of the above) emerges from regulatory institutions. And those institutions include not only public agencies, commissions, bureaus, and boards, but also many quasi-public and private entities. These varied institutions have complex relationships with the businesses, organizations, and individuals whom they hope to regulate, as well as with legislatures, executive administrations, and the courts.
This course offers an extended foray into the regulatory black box. It is framed around questions of historical origins and transformations. Chronologically, it begins with the construction of modern, technocratic regulatory bodies in Western Europe and especially the United States during the late nineteenth and early twentieth centuries; considers the evolution of these institutions during the twentieth-century; and explores more recent developments, including processes of privatization/deregulation and the impact of globalization on regulatory frameworks, and the expansion of modern regulatory modes of governance to emerging economies.
Although rooted in history, the class engages with many other disciplinary perspectives – the role of economic analysis in regulatory action; the political economy of regulatory power; sociological assessments of organizational culture within regulatory institutions; the impact of legal ideas/culture on regulatory process; the role of scientific risk assessment in identifying policy problems requiring regulatory attention; the impact of engineering concepts on regulatory strategies; the ethical dilemmas that arise when policy-makers confront contending interests and conflicting regulatory aspirations.
Throughout the semester, we will examine the dynamics and consequences of regulatory decision-making across various issue domains, including: rate-setting for public utilities; oversight of the financial system to prevent/mitigate crises; consumer and environmental protection; drug and highway safety; labor relations; and anti-discrimination standards for the workplace.
BOOKS FOR PURCHASE (ONLINE)
Thomas McCraw, Prophets of Regulation: Charles Francis Adams, Louis Brandeis, James Landis, Alfred Kahn (Cambridge, Mass., 1986)
Cindy Skrzycki, The Regulators: Anonymous Power Brokers in American Politics (New York,
2003) – Optional, but highly recommended
ASSIGNMENTS AND GRADE WEIGHTS
Readings average around 150 pages a week, sometimes more, sometimes less, with a focus on primary sources. You will see that the syllabus contains hyperlinks to many of the readings and viewings, which are available online.
This is a “Research” intensive class. But rather than doing one big term paper, you will complete a few shorter research exercises, and one final 12-15 page research report, with both a first and final draft. Throughout the semester, you will also be expected to write regular short entries in a class journal, which you will periodically submit for review and feedback. Detailed descriptions of these various assignments are available on the Sakai site, in a folder under “Resources.”
Class participation is extremely important in this class, and counts for a full 1/5 of the grade. So it is crucial to keep up with the reading. The breakdown of grade weights follows (please consult the “Grading Policies” document under the Assignments folder on the Sakai site for our expectations for assignments).
First Journal Submission: 15%
Second Journal Submission: 15%
Third Journal Submission: 15%
Draft Research Report: 10%
Final Research Report: 25%
Class Participation: 20%
There are no examinations in this course. We also strongly encourage you to consult the guide to the class journal and the final research project early on in the semester. These assignments are challenging, have several elements to them, and require regular attention if you wish to do well in the course.
HONOR CODE
I expect you to abide by the rules and regulations of the Duke Honor Code in this course. You will have plenty of opportunity to share ideas, and even some of your research work with other students. But when you turn in a paper or an exam, we expect you to attest that you have abided by the Honor Code in completing the paper or test. For detailed information on the Duke Honor Code and Community Standard, please see
TEACHING ASSISTANT
Anna Johns, Joint degree candidate (Ph.D in History/J.D. in Law)()
SAKAI COURSESITE
This syllabus is available on the course Sakai site, in a folder under “Resources.” The syllabus includes links to many assigned readings and viewings. Some other readings are available through library databases on the Duke Library Homepage. Detailed guidelines for all research and writing assignments are also available on the course website, in the “Assignments” Folder under “Resources.” We will expect you to submit your various writing assignments through the coursesite – either the drop box or a forum, as indicated in the guide to a given assignment.
CLASS SESSIONS
Week One: Introduction to Modern Regulatory Governance
PLEASE NOTE – NO SECTION MEETINGS THIS WEEK
CLASS 1: POPULAR ATTITUDES, INSTITUTIONAL REALITIES (JAN. 8)
The Gallup Poll: Public Opinion 2002(New York, 2002), 193 (right column)
World Public Opinion.Org, “20 Nation Poll Finds Strong Global Consensus: Support for FreeMarket System, But
Also More Regulation of Large Companies,” Jan. 11, 2006
Pew Research Center for the People & the Press, “Mixed Views of Regulation,” Press Release,Feb. 23, 2012
Gallup Politics, “Little Appetite in U.S. for More Gov’t Regulation of Business,” Sept. 24, 2012
Jim Snyder, “Americans Favor Regulations More Than Romney Bargained On,” Bloomberg News, Nov. 12, 2012
Mike Lukovich Cartoon, Atlanta Journal-Constitution, May 2, 2010
Signe Wilkinson Cartoon, Washington Post, July 5, 2011
Week Two: Regulatory Aspirations and the Beginnings of the Modern Regulatory State
CLASS 2 (SECTION):REGULATORY PURPOSES AND THE SPECTER OF CAPTURE(JAN. 12)
Joseph Stiglitz, “Regulation and Failure,” inMoss and Cisternino, 11-23
Tom Baker and David Moss, “Government as Risk Manager,” in Moss and Cisternino, 87-109
Daniel Carpenter, “Detecting and Measuring Capture,” in DavidMoss and Daniel Carpenter, eds., Preventing Capture:
Special Interest Influence in Regulation, and How to Limit It (New York, 2013) [Coursesite]
CLASS 3:REGULATION BEFORE THE MODERN ADMINISTRATIVE STATE(JAN. 13)
Lawrence Friedman, A History of American Law, 120-29, 329-49 [Coursesite]
Maryland Statutes Regulating the Sale of Salted Fish (1817-30) [Coursesite]
Commonwealth v. Rice 50 Mass. 253 (Supreme Court of Massachusetts, March 1845). [Lexis-Nexis]
Sources on Early Federal Steamboat Regulation [Coursesite]
CLASS4:FERTILIZER TESTING AND THE REGULATORY DILEMMAS OF ASYMMETRIC INFORMATION (JAN. 15)
Alan Marcus, “Setting the Standard: Fertilizers, State Chemists, and Early National CommercialRegulation, 1880-
1887,” Agricultural History 61 (1987): 47-73 [JSTOR]
“Inspection of Fertilizers,” American Farmer (Feb. 1860): 241 [APSO]
Fourteenth Annual Report of the Secretary of the Maine Board of Agriculture Augusta, 1870), 207-220 [Google Bks]
W. S. Dewolf, “How Frauds in Fertilizers Are Prevented by the Inspection Laws,” Macon Telegraph, Feb. 20, 1885,
7 [America’s Historical Newspapers]
“Cumberland Bone Co. – FARMERS, ATTENTION! The Latest Official Valuations Determined by Our State Chemists,” Maine Farmer 53 (Apr. 16, 1885): 4 [APSO]
“The Fertilizer Trade,” American Agriculturalist 48 (Dec. 1889): 654 [Goggle Books]
Dr. Gustaf Schack-Sommer, “On Agricultural Fertilisers and Feeding Stuffs,” Journal of the Society of Chemical
Industry (May 31, 1892), 406-12 [Google Books]
Week Three: Transatlantic Regulatory Responses to Urbanization and Industrialization
Jan. 19 – Martin Luther King Day – NO CLASS
CLASS5: THE CREATION OF MODERN PUBLIC HEALTH IN THE U.S. AND EUROPE (Jan. 20)
Charles Rosenberg, The Cholera Years: The United States in 1832, 1849, and 1866 (New York, 1962), chs. 10-11
[Coursesite]
“The Privy Council and the Public Health,” Saturday Review 25 (April 25, 1868): 551-52[British Periodicals]
“The Relations of Sanitary Inspectors to the Medical Profession,” Sanitarian 2 (Nov. 1, 1874): 351-54 [APSO]
Elisha Harris, “The Public Health,” North American Review 127 (1878): 444-55 [JSTOR]
Edwin Chadwick, “Some Primary Conditions for the Promotion of Health,” Sanitarian 25 (July 1, 1890): 19-23
[APSO]
Recommended:
Report of the Board of Health for the City of Chicago for 1867, 1868, and 1869 (Chicago, 1871),116-20 [Google
Books]
“Sanitary Inspection of New York Tenements,” Manufacturer and Builder 11 (Sept. 1, 1879): 210 [APSO]
Stephen Smith, “The International Sanitary Conference of Paris,” Journal of Social Science 32 (Nov. 1894): 90-108
[APSO]
CLASS 6: MINING DISASTERS AND THE MOVE FOR IMPROVED WORKPLACE SAFETY
Sources on the Avondale Mine Disaster [Coursesite]
Eckley Coxe, “Mining Legislation,” Journal of Science 4 (1871):19-32 [APSO]
Week Four: The Invention of Technocratic Regulation
CLASS 7: (SECTION) COMBATING SMOKE NUISANCE – REGULATION AND BUSINESS SELF-REGULATION (Jan. 26)
Frank Uekoetter, “Divergent Responses to Identical Problems: Businessmen and the Smoke Nuisance in Germany
and the United States, 1880-1917,” Business History Review 73(1999): 641-76 [JSTOR]
Students w/ last names A-J read sources on the U.S. closely and skim others; students with last names K-Z read sources on rest of world.
“The Smoke Nuisance- Problems for Inventors.” Scientific American46 (Mar 11, 1882):144[APSO]
Eugene McQuillin, “Abatement of the Smoke Nuisance in Large Cities,” Central Law Journal46 (Feb 18, 1898):
147 [APSO]
Charles H. Benjamin, “Smoke Abatement in Large Cities,”70 Outlook (Feb 22, 1902): 480 [APSO]
“Lambasted by Mayor,” Baltimore Sun, Apr. 4, 1915, 5 [Historical Baltimore Sun]
Agnes Sunley, “Leeds and the Smoke Nuisance,” The Women’s Penny Paper (Nov. 1, 1890): 22
[19th Century British Periodicals]
“The Smoke Nuisance in Calcutta,” The Friend of India and Statesman, Feb. 17, 1898, 6 [19th Century UK Periodicals]
Harold A. Des Voeux, “Discussion on Smoke Abatement,” British Medical Journal (Aug. 29, 1908): 549-54 [JSTOR]
“Smoke in Cities,” Manchester Guardian, Mar. 4, 1909, 9 [Historical Manchester Guardian]
“Smoke Abatement,” Manchester Guardian, Apr 17, 1914, 16. [Historical Manchester Guardian]
John Kershaw, “Sunlight, Pure Air, and Smoke Abatement,” Fortnightly Review 112 (Dec. 1922): 989-1000 [British Periodicals]
Some of the sources for this class were identified by Duke student Keith Orgel, as part of his work for a course in American Legal History
CLASS 8: THE RAILROADS AND THE SUNSHINE COMMISSION (Jan. 27)
McCraw, chs. 1
Second Annual Report of the Board of Railroad Commissioners (Boston, 1871), xxiv-xxxii; cxv-cxx
CLASS 9: PUBLIC UTILITIES & THE INDEPENDENT COMMISSION (JAN. 29)
McCraw, ch. 2
“The Fight to Regulate Corporations,” Kansas City Star, Mar. 4, 1908, 3[America’s Historical Newspapers]
“Interests Arm to Fight Utility Bill,” Cleveland Plain Dealer, Jan. 22, 1910, 1 [AHN]
James T. Young, “The New Government Regulation of Business,” Annals of the American Academy of Political and
Social Science 59 (1915): 212-25 [JSTOR]
Rexford Tugwell, “The Economic Basis for Business Regulation,” American Economic Review4 (1921): 643-58
[JSTOR]
Recommended:
William J. Hausman and John L. Neufeld, “The Market for Capital and the Origins of State Regulation of Electric
Utilities in the United States,” Journal of Economic History 62 (2002): 1050-1073 [JSTOR]
FIRST SUBMISSION OF COMPILED JOURNAL, DUE JAN. 27, 5:00
Week Five: Transatlantic Visions of Business-Led Regulation
CLASS 10 (SECTION): CARTELISM IN EARLY TWENTIETH-CENTURY EUROPE (FEB. 2)
Morton Keller, “The Pluralist State: American Economic Regulation in Comparative Perspective, 1900-1930,” in
Thomas McCraw, ed., Regulation in Perspective [Coursesite]
P. Harvey Middleton, “The Powerful Foreign Trade Combinations of Europe,” Railway Age 64(Apr. 5, 1918): 884-
87 [APSO]
Alfred Pearce Dennis, “Are We Trust Shy? Europe Isn’t,” Nation’s Business 13 (June 1925): 29-31[ABI/INFORM
Complete]
Walter Layton, “The International Steel Cartel,” Manchester Guardian, Oct. 12, 1926, 12 [Historical Man. Guard.]
Julius Klein, “International Cartels,” Foreign Affairs 6 (Apr. 1928): 448-58 [JSTOR]
CLASS 11:PROGRESSIVE-ERA AMERICAN COMPETITION POLICY (FEB. 3)
McCraw, Chs. 3-4
FTC v. Gratz, 253 U.S. Reports (U.S. Supreme Court, 1920)
E. J. Buckley, “An Important Decision,” Grand Rapids Furniture Record 41 (Sept. 1, 1920): 171 [APSO]
“Dishonest Advertising,” Washington Post, Jun. 15, 1928, 6 [Historical Washington Post]
Annual Report of the Federal Trade Commission(Washington, 1929), 82-92
William Humphrey, “We Quit Playing Tag with Fraud,” Nation’s Business 18 (Jan. 1930): 39-42 [APSO]
CLASS 12 – THE ALLURE OF BUSINESS SELF-REGULATION (FEB.5)
Ellis Hawley, “Three Facets of Hooverian Associationlism: Lumber, Aviation, and Movies, 1921-1930,” in Thomas
McCraw, ed., Regulation in Perspective[Coursesite]
Boston Better Business Commission, The Boston Better Business Commission: An Outline of Its Work (Boston,
1922), 1–5 [Coursesite]
“A Judge Urges Self-Regulation by Business,” Crockery & Glass Journal 105 (Dec. 22, 1927): 14-16 [APSO]
“’Reciprocal Buying’ and Self-Regulation of Industry,” Railway Age 88 (Feb. 15, 1930): 419-20 [APSO]
Week Six: The New Deal Regulatory Order
CLASS 13 (SECTION): REGULATION AND THE CREATION OF COUNTERVAILING POWER: LABOR AND
AGRICULTURE (Feb. 9)
Archibald Cox and Derek Bok, Cases and Materials on Labor Law (6th ed., Brooklyn, 1965), 113-29 [Coursesite]
Joan Robinson, Review of American Capitalism: The Concept of Countervailing Power, by John Kenneth Galbraith,
The Economic Journal 62 (1952): 925-28 [JSTOR]
Recommended: Christopher Tomlins, “The New Deal, Collective Bargaining, and the Triumph of IndustrialPluralism,”
Industrial and Labor Relations Review 39 (1985): 19-34 [JSTOR]
Students with last names A-J read sources on labor; others read sources on agriculture
Executive Order No. 6763, “Creation of the First Labor Relations Board,” June 29, 1934[Coursesite]
“The People vs. Labor,” Forum and Century 97 (May 1937): 257-58 [APSO]
Ben Golden, “Industrial Relations in the Current Depression,” Science and Society 3 (1939): 199-216 [JSTOR]
Address of Franklin D. Roosevelt to Farm Groups, May 14, 1935
E.E. Lewis, “Black Cotton Farmers and the AAA,” Opportunity: A Journal of Negro Life (March 1935)
William Amberson, “The New Deal for Share-Croppers,” The Nation 140 (Feb. 13, 1934): 185
Excerpt of Oral History with Elroy Hoffman, Nebraska Farmer
CLASS 14: SECURITIES AND BANKING REGULATION (FEB. 10)
McCraw, Ch. 5
William Z. Ripley, “Public Utilities Insecurities,” Forum and Century 88 (Aug. 1932): 66-72 [APSO]
Walter Lippman, “The Investigation of Private Bankers,” Los Angeles Times May 26, 1933, A4[Hist. LA Times]
Introduction, Pecora Committee Report on Stock Exchange Practices, June 6, 1933
Paul Mallon, “Inquisition Dramas Staged by Congress,” New York Times,Dec. 9, 1934, SM6 [Hist. NY Times]
“Text of Speech by Commissioner W. O. Douglas,” Wall Street Journal, May 21, 1938, 3. [Hist. WS Journal]
Recommended:
Mortimer J. Fox, Jr., “Deposit Insurance As an Influence for Stabilizing the Banking Structure,”
Journal of the American Statistical Association 31 (1936): 103-112 [JSTOR]
John Kenneth Galbraith, The Great Crash: 1929
CLASS 15: ASSESSING IMPLEMENTATION OF THE NEW DEAL ORDER (FEB 12)
Spend 2-3 hours reading over the following 1939 annual reports from twoNew Deal regulatory agencies:
The Securities and Exchange Commission
The National Labor Relations Board
Pick sections that are relevant to the following themes:
- public participation in the regulatory process
- the building up of bureaucratic autonomy/capacity/sense of mission
- apparent strategy behind enforcement actions
Week Seven: Early Expressions of Backlash
CLASS 16 (SECTION): MORAL OBJECTIONS -- THE THREAT TO ECONOMIC FREEDOM (Feb. 16)
Herbert Spencer, “The Coming Slavery,” The Contemporary Review 45 (1884): 461-82 [JSTOR]
J. M. Clark, “Frontiers of Regulation and What Lies Beyond,” American Economic Review 3 (1913): 114-25[JSTOR]
“Opposition to Truck Regulation,” Railway Age 90 (June 6, 1931): 1097-98 [APSO]
“Snell Pits Past against New Deal,” New York Times, Aug. 26, 1935, 1[Historical NY Times]
Frank Henry Selden, “The Right to Be Free to Choose,” Forum & Century (159 (Jan. 1938): 31-32 [APSO]
William Fielding Ogburn, “Thoughts on Freedom and Organization,” Ethics 58 (1948): 256-61[JSTOR]
Friedrich Hayek, The Constitution of Liberty, ch. 15 [Coursesite]
Optional – “The Middleton Family at the New York World’s Fair” (1939)
CLASS 17: ANXIETIES OVER DUE PROCESS AND THE CREATION OF THE ADMINISTRATIVE
PROCEDURE ACT (FEB. 17)
McCraw, ch. 6
Harold Dodds, “Bureaucracy and Representative Government,” Annals of the American Academy of Political and
Social Science 189 (Jan., 1937): 165-72 [JSTOR]
Foster Sherwood, “The Federal Administrative Procedure Act,”American Political Science Review 41 (1947): 271-81
[JSTOR]
Recommended:
Marver Bernstein, Regulating Business by Independent Commission (Princeton, 1955): 74-102 [Coursesite]
Daniel Ernst, "The Politics of Administrative Law: New York's Anti-Bureaucracy Clause and the O'Brian-Wagner
Campaign of 1938,"Law & History Review 27 (2009): 331-72 [HeinOnline]
CLASS 18: THE EARLY REGULATION OF AMERICAN TELEVISION (Feb. 19)
Everyone reads:
Robert Williams, “The Politics of American Broadcasting: Public Purposes and Private Interests,” Journal of
American Studies 10 (1976): 329-340 [JSTOR]
Last names A-D read:
Mickie Edwardson, “Blitzkrieg over Television,” Journalism History 25:2 (Summer 1999): 42-53 [Communication and
Mass Media Complete]
Last names E-H read:
William Boddy, “Launching Television: RCA, the FCC, and the Battle for Frequency Allocations, 1940-1947,”
Historical Journal of Film, Radio & Television 9:1 (Mar 1989):45-57 [Communication and Mass Media
Complete]
Last names I-P read:
Pam Pennock, “Televising Sin: Efforts to Restrict the Televised Advertising of Cigarettes and Alcohol in the United
States, 1950s to 1980s,” Historical Journal of Film, Radio and Television 25 (2005) 619-36 [Communication
and Mass Media Complete]
Last Names Q-Z read:
Mickie Edwardson, “James Lawrence Fly’s Report on Chain Broadcasting (1941) and the Regulation of Monopoly in
America,” Historical Journal of Film, Radio & Television22 (2002): 397-423 [Communication and Mass
Media Complete]
Week Eight: Extending the Regulatory State from the 1950s through 1980s I