Regulatory Reform: Creating Gaps and Making Markets

This article argues that dispute processing reform, such as regulatory negotiation, plays a role in constructing a “crisis” in regulatory litigation and defining a new partnership between regulated interests and the state. Unlike traditional studies of regulatory reform, which tend to evaluate the behavioral impact of legal reform on policy, I argue that reforms themselves play a constitutive role in politics. The article examines the ideology of regulatory negotiation and presents empirical data on federal regulatory litigation in the U.S. Courts of Appeals (1940–1985), to demonstrate that this legal reform is part of a general drive toward a minimalist state.