Paradoxes of the Regulatory State

Much of the relevant literature focuses on the evils of "rent-seeking"-the expenditure of resources on the transfer of wealth through law rather than on the production of wealth through markets.Insofar as this is a normative critique, it is an ideological one, and a peculiar one at that.All laws have redistributive functions, and some such laws have powerful arguments in their support.Consider measures preventing environmental degradation or race and sex discrimination.Moreover, the expenditure of resources on laws is part and parcel of the practice of citizenship, and it would be wrong to devalue that practice because of the admittedly frequent phenomenon of self-interested political behavior on behalf of causes lacking public-regarding justifications.I The term is of course misleading insofar as it suggests an absence of governmental controls.Even a system of laissez faire is pervaded by legal duties and disabilities that arise from contract, tort, and property law.7 Thus the classic discussions of the subject deal hardly at all with regulatory performance.See Louis L. Jaffe, Judicial Control of Administrative Action (Little, Brown, 1965); and Kenneth Culp Davis, Administrative Law Treatise (K.C. Davis Co., 2d ed 1978).The problem continues with more recent work.See Richard B.