Regulatory Overlap, Overlapping Legal Fields, and Statutory Discontinuities
By Todd S. Aagaard
ABSTRACT
Lawmakers and scholars alike criticize regulatory overlap on the ground that giving administrative agencies overlapping jurisdiction leads to duplicative or conflicting regulation which is inefficient and unduly burdensome. This Article challenges this orthodox account of regulatory overlap through examination of six case studies in which the Environmental Protection Agency and the Occupational Safety and Health Administration have managed their jurisdictional overlap so as to create regulatory synergy rather than dysfunction. Although this Article is not the first to argue that regulatory overlap may improve the effectiveness of regulatory programs, the case studies examined here highlight two important aspects of regulatory overlap that existing scholarship has overlooked. First, policy problems that cut across legal fields invite an allocation of authority that vests agencies with overlapping regulatory jurisdictions. Second, regulatory overlap allows agencies to smooth over discontinuities at the interstices of statutes, thereby adding coherence to the law.
Lawmakers and scholars alike criticize regulatory overlap on the ground that giving administrative agencies overlapping jurisdiction leads to duplicative or conflicting regulation which is inefficient and unduly burdensome. This Article challenges this orthodox account of regulatory overlap through examination of six case studies in which the Environmental Protection Agency and the Occupational Safety and Health Administration have managed their jurisdictional overlap so as to create regulatory synergy rather than dysfunction. Although this Article is not the first to argue that regulatory overlap may improve the effectiveness of regulatory programs, the case studies examined here highlight two important aspects of regulatory overlap that existing scholarship has overlooked. First, policy problems that cut across legal fields invite an allocation of authority that vests agencies with overlapping regulatory jurisdictions. Second, regulatory overlap allows agencies to smooth over discontinuities at the interstices of statutes, thereby adding coherence to the law.
