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Summary Admin Law & Market Regulation
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Overview of all the concepts presented in weeks 1-7 of the course
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Lecture 1What is Administrative Law?
- French Approach: A body of rules which organize the government and its public bodies
- German Approach: A body of rules that protects citizens against actions of public
authorities
- US Approach: The body of law that allows for the creation of public regulatory agencies
and contains all of the statutes, judicial decisions and regulations that govern them
Constitutional vs Administrative Law
- Constitutional law defines fundamental rights and general rules for the functioning of the
government
- Administrative law defines the specific rules
Regulation
- Often focuses on rules for specific sectors
- Seen as a subset of administrative law
- In the present day, law is made not only by formal legislator, but many fields are
developed by regulators
- Definition: Any control system that contains a minimum of 3 components:
1. Capacity for standard-setting, to allow a distinction to be made between more or less
preferred states of the system
2. Capacity for information-gathering or monitoring to produce knowledge about
current or changing states of the system
3. Behavior-modifications, some capacity to change the state of the system
Traditional Assumptions of Regulation
- The state is responsible for the protection of the collective goals of the community
- Hierarchical nature of the state’s role; state has final say (multi-level governance has
changed this)
- Centrality of state regulation
Why Regulate?
- Regulation aims to serve the public interest
- Prevent monopoly power and abuses
- Consumer protection
- Social or environmental goals
, Lecture 2
Why Regulate?
- Regulation is needed when there exists 1) a socially relevant behavior with 2) potentially
harmful effects
Answering Exam Questions
Should X be regulated?:
- Is there socially relevant behavior?
- Are there any harmful effects?
- Examine public interests at stake
- Examine private interests at stake
- Decide if regulation is necessary and if so, what kind?
- NB. Balancing of interests is crucial
Economic and Social Regulation
- Economic: Government control of firm behavior of industries characterized by the lack
of competition
- Social: Government control of firm behavior with respect to environmental, health and
safety implications of the production and consumption of goods and services
Public Interest Regulation Theories
- Regulation seeks to increase social welfare
- Key idea: Regulatory address of market failures and efficient government intervention
Public Interest Regulation Theories
- Regulation often disproportionately benefits particular groups in society and not the
public
Regulatory Failure:
- By trying to influence how the state uses coercive authority, business seek to “buy” one
or more of the government’s main products:
1) Subsidies;
2) Control over competitive entry;
3) Regulation of product, substitutes or complements;
4) Fixing of prices
Regulatory Capture:
- When officials in regulatory institutions develop such close relationships in regulated
industries that they promote private interests over public interests
Key Ideas:
- Regulation is designed depending on who has the most to win or lose
, Baptists & Bootleggers
- Two groups with opposing interests very satisfied by the same regulation
- Both groups support same regulation despite different aims
Conclusion
- Homogenous interest groups make it easier to influence regulation
- Regulations addressing public interests give rise to costs for both private and public
actors
Lecture 3
Private v. Public Law
- Distinction between public and private law is important in deciding which court is
competent to resolve disputes
- Administrative law courts are generally skewed towards the citizen to counterbalance the
power asymmetry which exists between the citizen and the state
What is a Public Authority?
Signs that a body possesses public authority:
- Classified as “the state” or linked to the government in a formal way
- Has its competences laid down in a statute
- Publicly supervised
- Publicly funded
Blanco, 1873
- State-owned tobacco wagon injured child while traveling between (state-owned) tobacco
factories
- Was classified as falling within ambit of administrative law because:
- Incident occurred in the course of normal state activity
- Carried out in pursuit of a public interest
- Moreover, tobacco company is publicly funded and supervised
>> Damages brought to administrative court
*Common Criteria
- If a body is not part of the government per se, check if said body is:
1) Controlled/supervised by the government
2) Publicly funded
3) Acting in performance of governmental function
- NB: Cumulative criteria
Despite the common criteria, there is no universal definition because:
- Each jurisdiction has its own definition
- Definition is constantly evolving
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