Monday, September 02, 2013

Elements of Law 3.0 Notes of Readings: I-D (What is Law? Law Articulated by Regulatory Agencies--The Administrative Function)

(Pix (c) Larry Catá Backer 2013)

I have been posting about the development of a new course I have been developing for our first year law school students, "Elements of Law."  (Elements of Law 3.0: On the Relevance of a First Year Law Course Designed to Frame the Law School Curriculum).  The SYLLABUS can be accessed HERE.

With this post I continue to share with the class and interested "others" summary study notes for the course readings.  For this post we consider:  I. What is Law? D. Law Articulated by Regulatory Agencies: The Administrative Function.   Comments and discussion most welcome.

 The Table of Contents for all of the Lecture Notes may be accessed HERE: Elements of Law 3.0: Table of Contents for Lecture and Reading Notes for An Introduction to U.S. Legal Theory and Practice.

I. What is Law? D. Law Articulated by Regulatory Agencies: The Administrative Function.

Reading notes for:
--Edward L. Glaeser and Andrei Schleifer, The Rise of the Regulatory State Journal of Economic Literature XLI:401-425 (2003). READ ALL BUT SECTION 3.
-- Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies, Vol. 15, 2008. READ PARTS I-V (pp. 101-138 in SSRN version).

We have been unpacking what might at first appear to be a rather straightforward inquiry: "what is law?" The least interesting (though necessary) purpose was to lay a foundation for much of what is to follow. The more interesting was to begin to suggest that the answer has at least to distinct aspects: one goes to function and the other goes to form. Though tightly intertwined in everyday operation, it is useful to disentangle them to understand each strand better. To that end I stated with the same reading that Western students might have encountered on their first day in law school near the end of the foundational period of the development of Western legal culture, the Institutes written during the reign of the Eastern Roman Emperor Justinian.

First, the Institutes introduced the student to the core question of the function of law in its broadest sense.  It drew the connection between law and justice, suggesting the idea, now central to conventional Western legal theory, that law is the manifestation of justice.  It then suggested a division within justice that is also well known to Western legal theory: that the manifestation of justice in law requires attention both to process and substantive norms.  The Institutes offer two general process principles, accessibility and predictability.  These now serve as the fountainhead of much of what passes for Western principles of process expressed in the constitutional law of states.  The Institutes offer a more ambiguous approach to the connection between justice and its substantive aspects.  It suggests, at its general level that justice (and law as the manifestation of justice) is welfare maximizing ("give man his due"). But it offers no specifics other than to suggest that the answer is contextual.  More concretely, the Institutes frame the issue of the substantive function of justice by reference to its manifestation in the sources.  The sources of law, then, are also the sources of its substance.  

With the quest for the sources of law, and the derivation from its appropriate application to the residents of a particular state, the Institutes introduce the student to the forms of law in its broadest sense.  The Institutes draw the connection between the substance of justice (and its manifestation in law) and the form in which law takes, identifying three distinct sources of law--natural law, the law of nations and "local" law.  These sources provide the matrix within which the substance of law is composed.  This is so because, for the Institutes, sources of law describe the formal as well as the normative structures of law: that is, a source of law includes its form, the institutions or persons who may create it, its relative authority in relation to other forms, and the basis for discovering its substance.  Natural law is immutable.  It is based either on scientific or divine "truth" of the kind that is incapable of refutation, except on its own terms (by other divine or scientific truths). It is common to all people (especially where a social system is grounded in a universalizing religion).  The law of nations is based on the customs and traditions observed by people of all states. It is not international law in the modern sense of agreements among states in their legislative or regulatory capacities, but rather it includes those governance systems now more commonly understood as transnational private law.  The best example of this law of nations was the old law merchant and in  its modern form the emerging systems of private governance of supply chain relationships.  The third source of law, the local law of a state, is also based on custom and tradition but more importantly is manifested by the actions of institutional actors who have been empowered to act on behalf of the people. But it also embraces the customary law of the people of a certain place.  Both the law of states and local law are grounded in consent and focused on the traditions and customs of the subject populations. Yet they can also be expressed by the authority of individuals and institutions--the government of a state--which has been vested with the authority to act in the name of the people.  And thus law, government, justice, process, science, religion, custom, process and consent are all bound up together and manifested in law through the forms which have emerged through custom. At bottom, and beyond the complexity of its form and manifestations, law may be understood to be those rules that a community consents to be bound by, even when individuals within that community do not.

With that foundation we began to consider in more detail those forms of law (and their form and sources) that serve as the framework of the U.S. domestic legal order.  We began with an examination of the premises and legal culture of the common law. The fundamental insight centered on the relationship between the form of common law and its function and substance.  These together define a means of declaring law that remains influential in the United States.  Common law in its essence referenced a system in which the Crown (now the government) offered to mediate disputes among private parties.  The dispute had to of a kind recognized as within the universe of judicially resolvable disputes, codified by reference to the writs available from the clerks of the Crown Chancery and accepted as within the jurisdiction of the court from which the plaintiff sought relief.   The writ itself included a promise, also enforceable by the courts, of a minimum standard of process rights (notice and an opportunity to be heard before judgement was rendered).  The court would base its resolution of the dispute through a process of deductive reasoning grounded in the essence of rights at issue, derived from the statements of other courts considering disputes grounded int he same writ, and reasoned by analogy to the resolution of similar claims previously rendered by that court or by other courts considering the same claim.  The court did not make law, it applied the law within the tightly constraining matrix of prior cases.  The tie to custom and customary expectation was reinforced by the role of a jury to which was assigned the task of finding "facts" on which the court could apply the reasoning of other courts and thus, the"law." The remedy available was usually reduced to money damages to make the victim whole. To this equity added  a number of additional private (and some public) claims that could be asserted by individuals and a number of additional remedies (injunction, constructive trust, specific performance, etc.). Most importantly, it inserted notions of fairness in judging claims (dirty hands, laches, and the like).  Thus the form of common law and equity (application to a court vested with jurisdiction over a matter of private dispute between parties grounded through the filing of a claim based on an appropriately stated claim for relief) also served to define its function (dispute resolution among private litigants driven by the litigants themselves) and substance (the development of rights to relief based on the aggregated resolution of similar disputes that reflected the expectations of the community as refined and applied by the courts). In this way common law was flexible in the sense that it changed as community expectations and needs changed; it was autonomous of the state in the sense that legislation was unnecessary to the development of these rules and the courts served to drive the development of these rules applied in a consistent way through the mediation of a class of lawyers well versed in the (to them at least) accessible body of decisions.  Common law was driven by litigants with claims; and in this sense it was conservative, resisting an instrumental use of law.  It was conservative and presented a moving target, the current version of the "law" to be applied necessarily had to include past and current judicial applications of the standard in the cases. To know the law required very sophisticated knowledge of the cases.  When one thinks about what it means to "think like a lawyer" in the U.S. system, it tends to reference this closed, self-referencing and litigant driven system of deducing law from the aggregate of its prior applications.

We then examined the culture and structure of statutory law. A century ago, a consideration of statutory law would have been a short appendix to the consideration of common la win the United States.  But the situation has been reversed here and it is now of central importance for U.S. law students to consider statutes as an integral part of their education. That consideration must be grounded both on the peculiarities of the "culture" of statutory law in the United States and the way in which statutory law co-exists with and draws on common law in ways incomprehensible to civil law.Statutes are as old as common law.

The Institutes remind us that from earliest times in the West the power to use law instrumentally, that is to have a government in place with the authority to issue commands with the purpose of managing or changing behavior among a subject population. These commands we have come to understand as statutory law when issued by an institution of government which exercises its power  in a manner specified in the rules for the organization of states  and the exercise of power delegated to it from the people. At the time of the Institutes and in contemporary common law origin states, customary law and statutes co-existed within the same regulatory space. But this changed in most countries in Europe and Latin America (at least as a formal matter) with the triumph of the French Revolution (and especially its approach to the relationship between law and the state). We noted two principal moving causes.  The first was the philosophy of the Enlightenment which embraced the idea that science and good management principles could be used to make society and the individuals within them better and more productive (perhaps even happier). The second was the increasing failures of then-current systems to meet the regulatory needs of societies confronting the rapid and socially destabilizing forces of industrialization.  Customary law, grounded in a premise of stability, was inadequate to the task of maintaining order at a time of rapid social, technological, political and economic changes. Statutes offered a more efficient alternative to regulation in terms of social transformation.  Statutes did not have to wait for litigants; it was more responsive to popular demand for solutions to general problems, it could be applied directly throughout a jurisdiction, it could be used instrumentally and it was generally accessible in the form of written commands.

In the wake of the French Revolution many states sought to apply "scientific" principles to the construction of "modern" states by jettisoning the complex of ancient customs, rights, royal and aristocratic prerogatives and obligations in favor of a tightly integrated system of rules with the objectives of bettering individuals and the society to which they belonged.  To that end that apparatus of the state, its government, was assigned the sole right to develop and implement law through either administrative regulations (discussed in our next class) or legislation. In many European states, by the beginning of the 20th century, the philosophy of law posited (though the situation on the ground was of course less clear) that only the state could make law and then only through the appropriate bodies following the appropriate rules for making law.  Courts applied this law but had no authority to make or declare it (of course this was also easier to maintain in theory than in fact).

In the U.K. the U.S. and other states based on English common law a different approach was taken.  Rather than abandon common law, states supplemented common law with a statutory overlay.  Where regulation was required to meet problems not addressed by common law or equity, statutes could fill the void directly; otherwise they sought to steer, change, or supplement common law in a number of respect that reflected conscious judgement about the way law should develop.  But statutes required a different approach to application than common law. Courts did not have to aggregate cases to derive the rule and the factual constraints within which it must be applied.  The statute spoke for itself.  Reference had to be made to the words of the statute and perhaps to the intention of its drafters.  That intent might be found in intrinsic sources--the provision itself, in the section in which it could be found, or in the entire statutory provision itself.  That intention was immutable (unlike the standards of common law).  In a number of jurisdictions that intent might also be derived from extrinsic sources--legislative debates, reports and other evidence of motive or objective.

 This grafting process also produced a very different judicial culture in relation to application of statutes in disputed between litigants.  Courts tended to apply the philosophy of common law judging to statutory enactments.  Statutes in derogation of the common law might be construed narrowly, or they could be construed broadly but applied only within the narrow context of the issue they addressed, or they could be integrated into common law systems and treated as part of common law, from which legal principles could be derived and applied deductively to solve problems generally.  Courts were also confronted with the problem of statutory ambiguity, either because statutes were poorly drafted (the product of political compromise and interpretation avoidance), or failed to include sufficient detail, or  were unclear about the mechanics of its implementation. To this problem, common law courts either engaged in statutory construction that corrected errors, developed and engaged in elaborate standards for gap-filling open textured statutes and developed substantial common law under-structures that elaborated statutes their reach, application and construction. This served to import some of the values of common law cultures to increasingly elaborate statutory systems.  In any case, in Anglo-American legal cultures statutes and common law found ways to be drawn together, existing both side by side and as part of integrated regulatory schemes.    

But even statutes ultimately failed to live up to their promise--and that failure was in evidence almost from the time U.S. governments sought to divert the thrust of law making from courts based common law to legislatively driven statutory law.  Like common law, statutory law increasingly was understood as an inefficient means of managing behavior.  Statutes were useful for commanding specific behavior (in the criminal law for example) and announcing objectives (clean air and protection of children from defective products, for example), but they proved unable to actually set out with precision those rules necessary to manage these policy objectives and more importantly statutes proved too inflexible to be modified as conditions changed.  These problems were structural--legislatures were hardly capable of acquiring the expertise necessary to adequately develop comprehensive rules for managing the increasingly complex behaviors they were called upon to control.  More importantly, legislatures are political bodies and the process of passing legislation is closely constrained by the needs of assuring democratic accountability.  As a consequence legislation is often difficult to enact and quick responses to changing conditions practically impossible to expect form a legislature. Yet the appetite for managing activity--from transportation, economic markets, product standards, trade, commodities, environmental consequences of activity, education, and the like--required resort to a form of law making that could avoid the passivity of common law and the structural rigidity of legislation.  The current consensus is that administrative regulations, rules enacted by non-elected officials under authority of a delegation of legislative power from democratically elected institutions--serve that purpose.

So today we consider what might be the most significant form of formal regulation, one that impact of of our lives in the most immediate and minute ways--administrative regulations.The first of our readings, Edward L. Glaeser and Andrei Schleifer, The Rise of the Regulatory State Journal of Economic Literature XLI:401-425 (2003), provides a historical and conceptual basis for the rise fo the modern administrative state.  The second reading, Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes, Indiana Journal of Global Legal Studies, Vol. 15, 2008, provides a glimpse of the culture of administrative regulation.

Glaeser and Schleifer start by reminding readers of the status quo before 1900, one in which litigation was viewed as the preferred default method for resolving commercial disputes.  This situation changed radically between 1887 (with the passage of the Interstate Commerce Act) and 1917 (and the effective end of the progressive movement in the U.S.).  This period marked not merely a move toward statute as a preferred means of managing behavior, but also set the foundation for the elaboration of increasingly complex and intrusive administrative regulatory systems through which government could more effectively engage in the social control of a wide range of economic activity. Glaeser and Schleifer develop a theory of law enforcement. They develop a theory based on a premise of the necessity of instrumental efficiency of statutes to guide their analysis. "In our theory, whatever law enforcement strategy the society chooses, private individuals will seek to subvert its workings to benefit themselves. The efficiency of alternative institutional arrangements depends in part on their vulnerability to such subversion." (Ibid., 401).

First they consider standard public interest theory, which is premised on the idea that regulation deals with market failures and externalities but which may not explain why neither tort nor contract law could successfully address these problems as effectively. (Ibid., 401). They note that by the beginning of the 20th century, it became more efficient for American society to rely on regulation than on either statutes or litigation as a means of creating regulatory structures.  Commercialization and industrialization created large companies that could more easily afford to influence justice, prevail in litigation as experienced repeat players, purchase legal talent and experts and avoid paying judgments.  Smaller companies and individuals found their interests better protected through statute and administrative regulation. From the authors' perspective, "the regulation of markets was a response to the dissatisfaction with litigation as a mechanism of social control of business." (Ibid., 402).  Recalling our discussion of the connection between law and justice, the authors note that writers of the 1930s "saw regulation as a political response to the failure of private litigation to keep up with the community ideas of justice." (Ibid., 403). More importantly, perhaps, it was an approach that suggested obtaining policy objectives at lower transaction costs to society.  That is, administrative regulation might increase the transaction costs of rich and powerful actors of subverting the system to their own benefit.  (Ibid).  The central question for administrative regulation, then, if regulatory efficiency (and social welfare maximization) are fundamental goals for using law instrumentally to create rules that "give every man his due" then the issue of litigation versus administrative regulation becomes an empirical one with results dependent on the character of each society: the unreliability of courts versus corruption of regulating agencies. (Ibid., 404). The issue for each society, then, the authors argue, is not whether administrative regulation is necessary, but what mix of administrative regulation, statutes and cases will produce the maximum benefit at the leats social cost.  (Ibid.).

The authors then describe the movement from common law to administrative regulation in the United States (Ibid., 404-408).  Their thesis is that the road to administrative regulation in the United States was paved by money and power and the efforts to reduce their ability to subvert (and therefore preserve the legitimacy) of the state.  They describe the way that powerful business interests used that power to maintain the dominance of common law, and through common law to minimize their exposure to liability. This was accomplished through interventions in ideological warfare (regulations as un-American and a threat to common law), and a range of subversion tactics: strategic selection of judges that would advance an appropriate ideological agenda, strategic use of trial tactics and the investment of substantial sums in delaying tactic litigation, bribery (witnesses, judges and legislators), and structural political corruption (city "machines" and the like).  In the 19th century, it seems, the well heeled always fared better in part because they had more resources to effectively use the legal system against less well resourced opponents.  But the move toward principles of mass democracy, and the increasing availability of voting power eventually tilted the contests between these groups from courts to legislatures and administrative agencies (Ibid., 407, 418) so that by the 1930s the administrative state had replaced the judiciary as the principal source of social control of business. (Ibid).  Thus regulation as a means of lawmaking has a substantially important political objective--to shift power from powerful actors to mass actors by moving the locus of regulation from a judiciary viewed as corrupt to a legislature that is viewed as more accountable to mass pressure through elections. (Ibid., 415).  

Yet, like judges and legislators, administrative regulators can also be corrupted.  Within the administrative state corruption follows two distinct paths--the first is old fashioned bribery and subversion, the second and most successful is an informal "capture" of regulatory agencies through sustained practices of interventions and the management of information used to build administrative regulations. (Ibid., 417).  From this historical accounting the authors proposes set of implications about the role of administrative regulation in modern states.  First, in states where corruption is likely and governmental institutions weak, it might be best to avoid any sort of regulatory intervention.  They make a case for private or transnational governance alternatives to law, a subject we will consider in our next class (Ibid., 420).  Regulation is desirable where the state has developed substantial governance capacity within a rule of law framework and especially to correct business activity with high likelihood of social damage. (Ibid., 421). Ironically, litigation as a regulatory strategy works best only in the most advanced states, states with a high degree of structural impediments to individual subversion of the system. (Ibid).  In essence, the highest degree of state intervention in and management of private activity is possible only in those states that have themselves developed a governmental apparatus the institutions with the technical expertise and the culture of ethics strong enough to do their jobs and resist corruption.

In the United States, the current framework of administrative regulations is fairly straightforward.  Regulations are rules with the effect of law, which are enacted by and administered under an agency of the state which has been created by statutes which (1) establish the structures and authority of regulatory agencies, (2) define the scope of their authority to enact regulation, and (3) delegate specific regulatory authority. These may be specified in one or several statutes and the legislature may amend or revoke regulatory power as the legislature likes.  All regulation is treated as a a delegation of legislative authority--agencies are exercising legislative authority but only to the extent the legislature has permitted such exercise.  All such regulations may be amended or voided by subsequent legislation nor by action of the regulatory agency.  Unlike statutes, which are the product of political negotiation and must be enacted in accordance with the procedures for legislation specified in state or federal constitutions, regulations are easier to enact, modify or repeal.  But regulation is still subject to a set of procedural constraints.  Federal agencies are subject, for example, to the constraints of the Administrative Procedure Act, which specifies the manner in which regulations may be enacted.  The object of these is to ensure, to some extent, that regulatory activity is open to some measure of public scrutiny and accountability.In the United States, the federal government makes federal regulations accessible through publication in the Federal Register, which serves as the daily journal of the United States government.  The regulations are also codified within a Code of Federal Regulations, which includes the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government. It is divided into 50 titles that represent broad areas subject to Federal regulation.

Where regulations are issues, statutes tend to be quite general, specifying the objectives of the statute and assigning responsibility for drafting and implementing rules to operationalize the statutory goals to administrative agencies.  These rules are far more specific and reflect an expertise that that may be beyond that of the legislature.  Yet administrative regulations may also suffer form the same deficiencies as statutes: they may be badly drafted, they may leave ambiguities, and they may not be flexible enough to deal with rapidly changing regulatory environments.  It is thus not uncommon for courts to treat regulations, when asked to apply them, in a way that is similar to judicial approaches to statutes.  Because of the level of detail and the presumption of expertise, courts have tended to defer to agency factual findings.  Courts also will look to both the statute and sometimes extrinsic sources within the agency to resolve ambiguities.  Some regulations have also spawned a substantial common law style jurisprudence.  A great example of the later is SEC Rule 10b-5, codified at 17 C.F.R. 240.10b-5.  The judicial glosses on the regulation, prohibiting fraud in connection with transactions in securities has been substantial and represents something like a common law of securities fraud.  Likewise, the Federal Rules of Civil Procedure, enacted under authority of the Rules Enabling Act, 28 U.S.C. § 2072 has also produced an enormous jurisprudence, the study of which makes up the bulk of a first year law course in procedure. These rules are efficient precisely because agencies with expertise over the subject matter of the rule making delegation can be more flexible in rule making. Yet in substantial respect, regulations bear much of the same character of statutes, whose form and "culture" they mimic.

If the first reading helped the student understand the context in which social tastes for administrative regulations arose, the second article (Backer, Larry Catá, Global Panopticism: States, Corporations and the Governance Effects of Monitoring Regimes. Indiana Journal of Global Legal Studies) is meant to suggest how administrative regulation can be naturalized within a social, economic and political system so that it does not exist outside of the activities it regulates but deeply within as part of those activities themselves.  More importantly, it suggests that the character of administrative regulation is not always the same as statutes.  That is, administrative regulations have been developing a set of methodologies substantially broader than those of statutes.  While statutes still command action and set standards of behavior, administrative regulations do not merely manage behavior within markets but also set up systems of surveillance and assessment through which regulatory goals can be internalized by the objects of regulations.  This has one most significant consequence--the costs of enforcement , that is the transaction costs of implementing regulations decrease as the objects of regulation become their own monitors.

Increasingly, public bodies are requiring, or permitting, private entities to monitor and report on the conduct and activities of a host of actors. It increasingly serves public bodies as a substitute for lawmaking. Surveillance is a flexible engine. It can be used to decide what sorts of facts constitute information, to determine what sorts of information ought to be privileged and which do not matter, to gather that information, to empower people or entities to gather information, and to act on the information gathered. In its domestic form it can be used to assign authority over certain types of information to private enterprises and then hold those enterprises to account on the basis of the information gathered. In its transnational form it can be used to construct a set of privileged information that can be gathered and distributed voluntarily by private entities on the basis of systems created and maintained by international public or private organizations as an alternative to formal regulation and to provide a means of harmonizing behavior without law. Surveillance in its various forms provides a unifying technique with which governance can be effectuated across the boundaries of power fractures without challenging formal regulatory power or its limits. It avoids the barrier between the public and private spheres; it substantially increases the regulatory palette of states without the complications of the usual limitations of public formal lawmaking—especially those of accountability and transparency.

The consequences of surveillance, particularly those consequences on the shape of governance, are to a great extent a function of the character of the surveillance power elaborated. The principal effects will tend to promote a further convergence of public and private regulatory power. This convergence arises from a fracturing of traditional divisions of power. A sovereign is said to lose its character as such when it “acts, not as regulator of a market, but in the manner of a private player within it.” The reciprocal principle has not been accepted de jure; a private actor is not said to lose its character as a private actor when it acts in the manner of a sovereign. Still, private players now are required to play the role of regulator and have sought that role for themselves de facto. And, increasingly, public bodies are requiring, or permitting, private entities to monitor and report on the conduct and activities of a host of actors.

Surveillance, then, functions as more than a descriptor of methodology. Surveillance is a new form of lawmaking through which the old boundaries between the public and private, national and transnational, are made irrelevant. The construction of complex systems of conscious and permanent visibility, as both normative systems and bundles of specific techniques, affects the power relationships among states, economic entities, and individuals. It represents modalities of fractures and complications in assertions of regulatory power, replicating its forms and effects throughout society. Its privatization tends to complicate the distinction between private and public institutions and between assertions of private (market or personal welfare maximizing) and public (regulatory or stakeholder welfare maximization). Surveillance cuts across borders—it embodies the techniques and sensibilities of an essentially transnational response to problems of governance. To understand the complexities and vectors of surveillance is to grasp the shape of converging public/private governance in this century. To that end, the article suggests an approach to the unbundling of the normative and methodological assumptions of surveillance usefully divided into four aspects: (1) normative, (2) informatics, (3) control, and (4) governance.  The reading, then,seeks to introduce the student to the transformation of surveillance from a technique of governance (how regulations are effectuated) to a  regulation itself (the functional role of technique becomes the substance of the measure without an intervening regulatory creation and adoption process) (reading 1-12).  The reading starts with a discussion of the normative role of surveillance, that is, how it is that a technique of implementation can substitute for the form of regulation, focusing  on its sources and forms.  Consider, for example "race."  A regulation may require the monitoring a race in connection with some activity (to further the objective of reducing the effects of racism in society).  Race can be viewed as !data"something that can be collected.  But to get to the point where "race" can be reduced to raw data that can be harvested and then used in the enforcement of regulatory schemes, something "regulatory" happens first--the collecting body has to determine the meaning of race. That determination, of course, affects not merely the mechanics of collection but has significant ramification for the targeted populations identified or missed in decisions about what constitutes "race" and what does not.  Where funds are distributed by reference to race indicators, for example, inclusion or exclusion can have significant effects on the way ion which regulatory systems operate and on the functional application of "law." And the choices may implicate substantially important social issues--how does one measure "whiteness"? how does one determine hispanicity--race, ethnicity, markers? and so on.  Beyond issues of data identification, the process of data collection (who collects the data and how it is collected) , and the process of evaluating the data (what is important, how is it organized and to what purpose is that data managed to conclusion) all affect the character of governmental responses and management of those areas for which it has data gathering authority.  Lastly the uses of evaluation may have significant consequences for further regulation, judicial construction of other regulations, statutes and common law and for managing societal understanding of "facts" with political consequences. 

The focus on surveillance adds a layers of complexity to the idea of law.  Until now, we have been thinking about law in its traditional forms.  That is law is understood as either a set of consequences for taking an action (common law) or as commands designed to manage activity (statute and regulation).  Each provides a clear expression that identifies conduct and declares the consequences of acting or failing to act in the identified way. But with the advent of the regulatory state this form of lawmaking also fails to appropriately respond to the needs for which regulation arose.  Where the object of regulation is the constant monitoring and management of activity, a set of commands may not be sufficient to respond to threats to the activity that is the subject of regulation.  Regulations that are meant to protect quality control, the integrity of markets, the discharges of pollutants, or the market behaviors of individuals or entities may not be adequately responsive is structured as a set of commands subject to enforcement for violation.  Continuous monitoring and correction may be what is required.  But law is quite ineffective as a tool for continuous monitoring and intervention,  Either the law must create structures through which the subject population monitors and corrects itself or it must adapt its techniques to suit the objectives of constancy in managing and controlling particular regulatory spaces (like markets). To that end, the techniques of assessment and of monitoring appear to better serve the regulating entity.  But to invoke these forms of control is ot move, and perhaps move decisively, away from the carefully constructed and contained space within which law acquires its character and legitimacy.  Taken together, the possibilities offered by the techniques of monitoring and assessment to substitute for the traditional forms of command based regulation  suggest that, just as there is a continuum from statute to regulation, so a similar continuum might exist between regulation and behavior controlling techniques that, though not in the form of law, function like it.  This movement may be necessary both because of the nature of the object of regulation, and because regulation may sometimes extend beyond the state (e.g., Backer, Larry Catá, Economic Globalization and the Rise of Efficient Systems of Global Private Lawmaking: Wal-Mart as Global Legislator. University of Connecticut Law Review, Vol. 39, No. 4, 2007. . More importantly, it provides an avenue for the privatization of the regulatory function by shifting its enforcement to private bodies, for example corporate boards of directors, accountants and lawyers (corporate gatekeepers) who then are tasked with the gap filling and ambiguity resolution functions traditionally exercised by courts.  (e.g., Backer, Larry Catá, The Sarbanes-Oxley Act: Federalizing Norms for Officer, Lawyer and Accountant Behavior. St. Johns Law Review, Vol. 76, pp. 897-952, 2002;   Backer, Larry Catá, Surveillance and Control: Privatizing and Nationalizing Corporate Monitoring after Sarbanes-Oxley (August 25, 2010). Law Review of Michigan State University-Detroit College of Law, 2004). But with the techniques of surveillance and monitoring, the function of control may well overwhelm the form, of law.  It is to those issues that we turn to next.

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