This Essay, an edited version of remarks made at the 2012 Federalist Society Annual Student Symposium, assesses recent scholarship on regulatory “capture” within the administrative state and calls for more rigor in how we frame and deploy the concept.As it happens, the Tobin Project has just published, with the Cambridge University Press, essays on capture with a similar aim of clarifying and refining the concept. (We previously linked to essays by William Novak, David Moss and Jonathan Lackow.) The collection is Preventing Regulatory Capture: Special Interest Influence and How to Limit It, edited by Daniel Carpenter and David A. Moss:
When regulations (or lack thereof) seem to detract from the common good, critics often point to regulatory capture as a culprit. In some academic and policy circles it seems to have assumed the status of an immutable law. Yet for all the ink spilled describing and decrying capture, the concept remains difficult to nail down in practice. Is capture truly as powerful and unpreventable as the informed consensus seems to suggest? This edited volume brings together seventeen scholars from across the social sciences to address this question. Their work shows that capture is often misdiagnosed and may in fact be preventable and manageable. Focusing on the goal of prevention, the volume advances a more rigorous and empirical standard for diagnosing and measuring capture, paving the way for new lines of academic inquiry and more precise and nuanced reform.