A Different Approach to Teaching Regulatory Law and Policy

In 1991, Joe Tomain and I proposed a new casebook on Regulatory Law and Policy as a follow-up for students to a course on administrative law. When the editors pointed out that no American law school was currently teaching such a course, we argued, “Build it and they will come.” We did build it, and a fourth edition is in the works with Kristin Hickman joining us as a coauthor.

After the introduction of first-year courses on the regulatory state, our argument that law students should have greater exposure to regulatory law and policy has gained traction within recent years. Our approach is different, however, because it aims to educate students on how and why politics, policy, and law influence regulatory decision-making. Consider the following points on teaching regulatory law and policy:

• When discussing with law professors the administrative law curriculum at law schools, Peter Barton Hutt, a preeminent food and drug lawyer, has remarked, “Either you don’t teach administrative law or I don’t practice administrative law, because what you and I do have nothing to do with each other.” Hutt has also noted that his practice is focused on making policy arguments to the U.S. Food and Drug Administration (FDA), not litigating violations of the Administrative Procedure Act (APA) in court.
• In Europe, regulation in general is regarded as a subject of study, rather than subdivided into individual subjects such as environmental law and food and drug law.
• Regulatory courses at most law schools only address a limited number of subjects, leaving students who are interested in other regulatory areas with nowhere to go.

Our answer to the question of how do you teach about “regulation” as a subject comes from Stephen Breyer’s seminal book, Regulation and Its Reform. In this 1984 book, Breyer recognized that there are only a limited number of justifications for regulation, as well as a limited number of tools or methods for achieving those goals. As Joe Tomain and I explain in a recent book, Achieving Democracy, regulation is “market protection,” which is intended to address market defects, or “market adjustment,” which is intended to adjust market outcomes to political values other than economic efficiency, such as equity and fairness.

Acquiring basic knowledge such as this, students gain a foundation in any regulatory subject. Moreover, arguments about regulatory reform originate from this same body of knowledge as well. Regulatory reform is justified when we have the wrong justification (think of deregulation of the transportation industries) or the wrong tool (think of the debate over using regulatory standards or economic incentives).

This is an exciting time for teaching administrative law as we think about how to educate our students better about the regulatory state. We offer our perspective—namely to focus on policy and politics as much as on administrative law—as one important part of this debate.

Sidney A. Shapiro is the Frank U. Fletcher Chair in Law at the Wake Forest University Law School and a co-author of Administrative Procedure and Practice (5^th ed. West), among other books.