Document Type

Article

Publication Date

2016

Abstract

The traditional paradigm of state and federal government envisions a neat separation between the legislative, judicial, and executive branches and between the public and private sectors. The heart of this Article explores the reality that some government agencies - particularly state agencies - have ambiguous and contested branch assignments and blurred hierarchical relationships with the private sector, and even other state agencies. When bureaucratic boundaries are blurred and ambiguous, an agency can become unhinged from laws that mandate transparency and accountability to the public it serves. This Article examines two state agencies -the North Carolina State Bar and the Board of Law Examiners - as examples of a regulatory model where autonomy and self-regulation are predominant features. Drawing upon original archival research, the Article traces how branch assignment ambiguity and self-regulation allowed each agency to drift from its original statutory mandate and evolve in unanticipated, and sometimes problematic, ways. After charting some of the negative effects of the way the agencies operate - including the Board of Law Examiners' decades-long failure to engage in public rulemaking - the Article argues that the state legislature should clarify the relationships and duties of these agencies, the government branch to which they belong, and whether both agencies must meet certain minimum requirements of public participation. This case study is instructive for jurisdictions regulating occupations and professions through autonomous regulatory models, particularly for jurisdictions seeking to make an informed response to the Supreme Court's federal antitrust law decision in North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S. Ct. 1101 (2015).

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