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The Failure of Adversarial Process in the Administrative State

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dc.contributor.author Camp, Bryan T.
dc.date.accessioned 2010-04-06T19:12:15Z
dc.date.available 2010-04-06T19:12:15Z
dc.date.issued 2009
dc.identifier.citation 84 Ind. L.J. 57 en_US
dc.identifier.uri http://hdl.handle.net/10601/411
dc.description.abstract This paper illuminates the spectrum of international economic regimes through discussion of an under-theorized regulatory structure in which traditional distinctions between state and market, public and private power, hard and soft law, and international and domestic policy realms, essentially collapse - the public-private gatekeeper. Specifically, I examine striking similarities between global bond markets and e-commerce markets through comparison of entities regulating admission to them - the dominant credit rating agencies (Standard & Poor's and Moody's), and the Internet Corporation for Assigned Names and Numbers (ICANN). Following an examination of the development of these markets and the global regulatory power exercised by these private-sector entities as a result of their unusual positions under U.S. law, the paper considers the challenge they pose to prevailing theoretical perspectives on the regulation of the global economy. I argue that these public-private gatekeepers reflect two forms of theoretical tension. The first is that between state-based and market-based forms of authority - the former built on a foundation of political legitimacy and the latter built on reputational legitimacy. The second form of tension, which I argue gives rise to the first, is the United States' simultaneous pursuit of two very different conceptions of sovereignty - Westphalian sovereignty emphasizing the centrality and autonomy of the state, and an increasingly prevalent competing conception of sovereignty emphasizing cooperation and compromise in the face of economic globalization. Through these entities, the U.S. government has sought to preserve centralized power while cultivating the perception of market-based private ordering. This, I argue, represents an unstable conflation of divergent views on how the global economy ought to be managed.
dc.language.iso en_US en_US
dc.publisher Indiana Law Journal
dc.relation.uri http://heinonline.org/HOL/Page?handle=hein.journals/indana84&men_hide=false&men_tab=citnav&collection=journals&page=57
dc.relation.uri https://advance.lexis.com/api/document/collection/analytical-materials/id/4WR0-KKB0-00CW-G148-00000-00?context=1000516
dc.relation.uri https://a.next.westlaw.com/Document/I8c8c6e8a191311deb055de4196f001f3/View/FullText.html
dc.relation.uri http://papers.ssrn.com/sol3/papers.cfm?abstract_id=997475
dc.subject Adversarial process
dc.subject Inquisitorial process
dc.subject Process
dc.subject Agency oversight
dc.subject Administrative law
dc.subject Bureaucracy
dc.subject Justice
dc.subject Tax administration
dc.subject Tax collection
dc.subject Federal income tax
dc.subject Abuse of discretion
dc.subject Agency power
dc.subject Judicial deference
dc.title The Failure of Adversarial Process in the Administrative State en_US
dc.type Article en_US

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