The Democracy Deficit: Taming Globalization Through Law Reform

267 Pages·2004·1.52 MB·English

by  Jr. Alfred C. Aman

The Democracy Deficit

The
Democracy
Deficit
Taming Globalization
through Law Reform
Alfred C. Aman, Jr.
a
NEW YORK UNIVERSITY PRESS
New York and London
new york university press
New York and London
www.nyupress.org
© 2004by New York University
All rights reserved
Library of Congress Cataloging-in-Publication Data
Aman, Alfred C.
The democracy deficit : taming globalization through law reform /
Alfred C. Aman, Jr.
p. cm.
Includes bibliographical references and index.
ISBN 0–8147–0700–9(cloth : alk. paper)
1. Administrative procedure. 2. Economic policy.
3. Industrial laws and legislation. 4. Globalization.
5. Law reform. I. Title.
K3402.A95 2004
342'.066—dc22 2004010881
New York University Press books are printed on acid-free paper,
and their binding materials are chosen for strength and durability.
Manufactured in the United States of America
10 9 8 7 6 5 4 3 2 1
To Carol

Contents
Preface ix
Introduction: The Domestic Face of Globalization 1
1 Three Eras of Administrative Law
and Agency Regulation 15
2 Federalisms Old and New:
The Vertical Dimensions of Globalization 51
3 Privatization and Deregulation:
The Horizontal Dimensions of Globalization 87
4 The Implications of the
Globalizing State for Law Reform 129
Notes 183
Index 243
About the Author 253
vii

Preface
This book is about globalization, politics, markets, and law in
the United States. It deals specifically with the interrelationships of these
concepts and the domestic institutions they involve. This book argues
that the forces and processes we call globalization can be influenced,
shaped, and harnessed to achieve public ends. Law, particularly domestic
administrative law, has a crucial role to play in this endeavor, and much
is at stake. Indeed, democracy in the twenty-first century depends on the
ability of citizens to affect the policies that globalization would now seem
to dictate.
Howoneconceptualizesglobalizationgreatlyaffectsone’sanalysisof
politics, markets, and law. From the standpoint of prevailing views, the
idea that law, much less domestic law, has an important role to play in
governingglobalizationmayseemtobecounterintuitive.Globalizationis
widely understood as a phenomenon in the private sector, especially in-
volving markets and capital flows. Globalization is often understood in
largely neoliberal, economic terms, as if it were a force of nature. For
some,globalizationisallaboutcompetition—acompetitionformarkets
andinvestmentsthatisglobalinscaleandmoreintensethaneverbefore.
For individual corporations to succeed, for example, they must become
moreefficient,takingfulladvantageofnewtechnologiesandmovingvar-
ious components of their operations around the world, so as to lower
costs and expand their markets. States are expected to follow suit by
deregulating their markets, privatizing governmental services, lowering
taxes, and, in the process, becoming more effective in attracting new
businesses. This conception of globalization easily translates into a do-
mesticpoliticsofefficiencyatthelocallevelthatmaymakeitatleastap-
pear that the public sector’s responses to collective problems will be
costly, resulting in higher taxes. Under this view, law’s most important
ix