“Deliberative,” “Independent” Technocracy v. Democratic Politics: Will the Globe Echo the E.U.?

I INTRODUCTION The building blocks for a future transnational and sometimes global administrative law are not difficult to identify, though there are quite a number. Some can be derived almost entirely from past U.S. experiences. The European Union, lying somewhere between an international treaty-based organization and a constitutional federalism, is particularly instructive--so, too, are the WTO and NAFTA, which share the free trade aspects of the E.U. Finally, parallel or converging developments in administration and its law in a number of advanced post-industrial states also are highly suggestive of future transnational developments. II REGULATION The first great building block is regulation. Health, safety, environmental, consumer protection, and labor regulations designed to mitigate the downsides of capitalist free markets have been a major feature of the political economies of individual states for a long time. By the late twentieth century, they had multiplied enormously, due in part to the great ideological upswing in environmentalism, to the fear of risk, and to the movement away from socialism and toward markets--thus, the perceived need for more market regulation. (1) By the twenty-first century, some of this blossoming of regulation has moved on from parallel national development to transnational arenas. Most notably, the E.U. transitioned from clearing away a dense web of national regulations inhibiting crossborder trade, to itself creating a dense web of transnational regulation. Both the WTO and NAFTA now show comparable potential. The dynamic of extended free trade and extended regulation is simple enough. Differing national regulations are an impediment to trade. Variations in costs to producers imposed by differing national regulations lead to competitive advantages and disadvantages among national trading partners, and fears of deregulatory competition among them lead to a rush-to-the-bottom-of-regulation mentality to gain competitive advantage. The obvious answer is to level the playing field by substituting transnational for national regulation. This "upward" movement of regulation-making, both in free trade areas organized as federal states and those organized further toward the pure treaty-based international organization, leads to questions about which level of governance shall do how much implementing of the new transnational regulations. Long and detailed study (mostly of the American experience) has demonstrated that policymaking and policy implementation can never be wholly separated. (2) The problem is particularly acute in government regulation--as opposed to service delivery--because the matters being regulated experience rapid and complex economic and technological change and incredible variation in detail over time and place. In regulation, the devil is in the details. Failures of regulation are most obvious when regulations are actually being implemented. Given the complexity of what is being regulated and the consequent complexity of the necessarily over-general regulations being written, the attainment of regulatory goals and purposes depend heavily on the many and continuous detailed interpretations of the general rules that must be made by implementers. So, alas, policymaking from on high and administration from the bottom is never wholly feasible, even if desirable. If administrative law is, among other things, the set of rules for the creation and implementation of regulation, then as we anticipate the growth of transnational regulation with its endemic problems--problems created by the question of which level of governance does how much of what--we might anticipate the growth of transnational administrative law. III THE TENSION BETWEEN DEMOCRACY AND TECHNOCRACY A. Democracy v. Technocracy Because much of this regulation will be of relatively high-tech economic activity, we can also anticipate that this growing transnational administrative law will encounter the same issues that the administrative law of high-tech national regulatory schemes has faced in the past. …