THE PUBLIC INTEREST IN REGULATION, by Mike Feintuck.

Vol. 15 No.8 (August 2005), pp.793-796

THE PUBLIC INTEREST IN REGULATION, by Mike Feintuck. Oxford: Oxford University Press, 2004. 299pp. Cloth. $99.00/£50.00. ISBN: 0199269025.

Reviewed by Robert T. Nakamura, Rockefeller College of Public Affairs, University at Albany, SUNY. Email: RNakamura@uamail.albany.edu .

Mike Feintuck observes that the term “public interest” is frequently evoked in legal and political discourse to justify the use of power, but there is little agreement on what it actually means or on the way to determine what action it requires. He goes further to argue that in regulatory affairs the diffuseness of the term has permitted it to be captured and more narrowly defined by advocates of a market-based perspective. This, in turn, leads to regulatory systems that fail to protect important communal values. Finally, he sets forth a rationale for developing a clearer, more determinative conception of the public interest. These observations and arguments are based on an extensive review of legal literatures and a comparison of how the U.K. and U.S. regulate food and the media.

Feintuck begins with the difficult task of simultaneously arguing that the concept of the public interest is both without meaning and is nevertheless important. At various times he quotes sources that dismiss the definitions of the public interest as overblown, irrelevant, mythic, and folkloric, and cites others who have sought in vain for universal principles or even ways of calculating them (disparaged as head counting schemes). Yet, while he shows how the concept often appears “to be an empty vessel, to be filled at different times with different content,” he insists that the reader take the term seriously. He makes his point in two ways. First, he observes that a conception of the public interest has been persistently evoked by participants in debates over regulation, and the concept has been taken seriously enough for competing claims to be advanced. Second, his more substantive argument arises from an insistence that, in regulatory affairs, a missing conception of the public interest leads regulators to fail in meeting the obligation to protect the most important public values. He bases his argument on a review of the literature and an examination of regulatory issues centered on the precautionary principle.

Feintuck’s extensive review of relevant works by lawyers and academics who use concepts from economics, liberalism, civic republicanism, critical theory, and other approaches, indicates that with the exception of the economics-based approaches, most of the other authors have not found a single conception of the public interest nor a method for calculating such an interest upon which they can agree. In many instances writers have dismissed the enterprise of defining such an interest altogether. By contrast, advocates of market-based models have a clear vision in which the public welfare is advanced most of the time by individuals freely defining and seeking their own advantage in activities with government intervention occurring only in response [*794] to market failures. Moreover, lawyer-economist-risk managers have articulated elaborate schemes for identifying when to intervene (types of market failures), methodologies for making decisions (quantitative risk assessment and cost benefit analysis), and justifications based on serving the public (defined as consumers, or some other specific group whose interests can be determined).

There are, in Feintuck’s view, many problems with this approach. He echoes the critique of others that while “the economist, accountant and mathematician may be drawn into coolly valuing what is measurable, a democratic audit should instead focus on measuring what is considered valuable” (p.18). Feintuck further notes that “an economic version of the public interest . . . is not meaningfully value neutral. . . [I]t privileges systems of market relations and therefore tends to confirm and perpetuate existing social divisions and hierarchy (p.37). While many conceptions of the public interest are value laden, he notes that the values of this one are rarely explicitly articulated. He sees in the assumptions of this calculus “a crude majoritarianism and a legitimation of existing power relationships” (p.42).

The separate discussions of regulation in the U.K. and U.S. and the chapters comparing the approaches are quite informative. Some of the broad differences between the systems have been noted by others, especially differences in conceptions of rights and frequency of judicial intervention. The choice of regulatory topics—emphasizing food and media—is interesting for its similarities in public demand for regulatory protections across the advanced industrialized world from “raw market forces” (p.159). This commonality supports a broader claim made elsewhere by Feintuck that there is some common conception of the public good that is evocable and consequential. In these countries and within the European Union, this desire for protection from potential harm raises the discussion over the proper extent and meaning of the precautionary principle. Feintuck uses these cases to criticize narrowing the concept of the public interest (e.g., consumer interest). When people are defined as citizens, their interests are conceptualized more broadly (and with much greater difficulty) than when they are seen as consumers. This is, of course, a new take on an old argument. Formulating it within the public interest and regulation discourse is a useful contribution.

Feintuck’s point is that in the U.S. (and by extension the U.K.), the concept of the public interest represents less of a “conceptual dead end . . . . but rather appears to represent a missed opportunity” (p.157). This void has been filled by technical legal, scientific, and economic arguments based on narrower consumer or other values. As a result, the regulatory systems of both countries fail to reflect the “set of non-commodity values on which . . . regulation is premised” (p.159). He concludes: “It is clear that in so far as regulation in such fields in both jurisdictions once revolved around a more or less vague concept of public interest, this has now been marginalized, with centre stage taken by an apparently clear, and certainly more fashionable, market-oriented approach” (p.165). He deplores this state of affairs, and tries to [*795] devise a way out which he believes lies with a better formulated conception of the public interest.

The case studies bring Feintuck to a series of issues at the heart of the problem. They include 1) failure to identify with any degree of precision the range of collective values; 2) failure to structure regulatory systems to achieve collective values; 3) a tendency to adopt partial versions reflecting only a subset of values (economic) while marginalizing others (citizen); and 4) failure of the legal system to protect those neglected public values. These failures, in turn, become Feintuck’s formulation of the challenges which must be met by any adequate conceptualization of the public interest as a shaping principle for regulation. Although he discusses some approaches to these challenges (the dialog of civic republicanism and other devices), it is clear that identification of a concept of the public interest, the consequences of not having one, and a formulation of conditions for an adequate definition and system, are meant to constitute Feintuck’s contribution to the discourse. He demonstrates that we do not have a working conception of the public interest and specifies the consequences of that deficiency. That is quite enough for one book.

Of course, Feintuck’s complete argument is subtler, sometimes more qualified and more nuanced than my brief summary indicates. He does, however, present two contradictory assertions about the conception of the public interest: it is too diffuse to guide action, and in its market guise (represented by Stephen Breyer) it is much too narrowly defined and too restrictive. Feintuck’s major objection – if proportion of attention paid in the book is a good indicator of importance – has less to do with diffuseness, which is most developed in the first part of his book, than it does with the economic model and its widely utilized conception of the public interest, which figures largely in much of the remainder. It may be a matter of one’s values whether she would consider that economic formulation as having “captured” the definition of the public interest, or simply as having prevailed in the debate by producing the most useful and accepted definition.

My second observation deals with the nature of Feintuck’s evidence and its influence on his conception of regulation. Despite disclaimers, he relies primarily the writings of lawyers (from within the economics and law camp and beyond), and discussions of regulatory decision making philosophies and cases in the U.K. and U.S. Although there is some discussion of changes in approach over time, the conception of regulation that Feintuck develops is narrower than one finds among political scientists who consider such issues. This sometimes leads to greatly different explanations. Capture of regulatory machineries by private interests, according to Feintuck, centers on the absence of a clearly articulated view of the public interest, thus rendering it “fair game.” For political scientists of an earlier era, capture was a function of the natural history of regulatory agencies in which the zeal for reform diminished while involvement by continuing economic interests remained. More recently, others have argued that private interest capture is less an inevitable function of time than it is dependent on [*796] the state of political constituencies surrounding a particular regulatory issue. Furthermore, at least two other sources of changing regulatory mission have been identified in the political science and organization literature—bureaucratic drift (the principal-agent problem in which agencies pursue their own goals) and political drift (susceptibility to changes in political decision-makers due to insufficient insulation for agencies).

Another difference lies in how to interpret the absence of a clearly defined set of statutory principles to guide regulation. Feintuck finds such a context to be conducive to his preferred approach for defining a public interest which is to make decisions in a broadly informed, participatory, anticipatory process of some sort. Many political scientists would react differently. For students of policy implementation, for example, the absence of clarity is a sign that policy makers could not agree on the elements they left ambiguous despite feeling obliged to take some legislative action. Students of environmental regulation would see parallels in debates over “how clean is clean enough,” or “how safe is safe enough,” vague concepts used by bureaucrats to focus concrete activities.

We are indebted to Mike Feintuck for a sustained and focused examination of the legal literature’s varied perspectives on the public interest. It is an achievement because there seems to have been a sustained effort in this literature to avoid the topic, to dismiss it, or to push it to the margins, while focusing on something else. Feintuck convincingly demonstrates that the concept does seem to have a life of its own despite these efforts at marginalization. Furthermore, although the topic has been addressed widely but fleetingly by scholars, it continues to slip from the tongues of regulators, legislators, paid advocates for special interests, and citizen activists in discourse over what should be regulated and how. Until concepts catch up with talk, Feintuck’s conclusions about what an adequate concept entails can stand as a way of measuring the gap between talk and reasoned expectations.

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