Regulation in an Age of Technological Acceleration
MODERN GOVERNMENT is largely administrative government. Congress, by legislation, delegates substantial power to executive agencies. These agencies then promulgate regulations on a wide variety of subjects, from pollution to banking, from consumer safety to pharmaceuticals. While Congress oversees and influences the content of these regulations by conducting hearings on agency performance, it rarely overturns them. Courts also defer to the decisions of agencies and overturn only those regulations that are outside the scope of Congress’s delegation or are not supported by evidence.
Administrative government though agency regulation was itself a response to technological change. The rise of the administrative state in the late nineteenth and early twentieth centuries coincided with the faster change brought about by industrialization.1 Legislators were thought to have inadequate sources of information to use in formulating responses to such change. Indeed, some architects of the new legal and political order were aware that technological change was a cause of the administrative state’s necessity.2
The rise of the administrative state can thus be understood in terms of restructuring government to make policy that is better informed about consequences. Under this rationale, Congress sets the basic policy objectives for an administrative agency, such as the Environmental Protection Agency or the Federal Communications Commission. But the agency is presumed to enjoy the comparative advantage of specialized expertise allowing it to access information and to assess whether a regulation would actually meet those objectives. The administrative state represents a first attempt to separate the distillation of preferences (done by Congress) and the prediction of consequences (done by agencies). This separation provides a good reason to consider how the function of an administrative agency can be updated with better information-eliciting rules.
More recently, new frameworks have tried to improve the assessment of consequences. In 1980 Congress established the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and