Today there is an incalculably mammoth amount of state and federal legislation, covering virtually every conceivable subject, and an immense volume of administrative law, with more than seventy-five thousand pages of administrative rules, regulations, and proceedings published each year in the Federal Register. Administrative agencies gather knowledge and apply scientific expertise to establish regulatory schemes that effectuate legislative policies, and to monitor the achievement of legislatively established goals. Administrative law is thus a purely instrumental creature, created to carry out legislatively determined ends. Legislation, as Part 1 conveys, as been understood in consummately instrumental terms as well, for more than two centuries.

Battles over and through legislation and administrative regulations are no novelty. James Madison warned in Federalist 10 of the dangers of competing “factions,” which had already made their presence felt in the state legislatures of the day. These battles were especially heated at the outset of the twentieth century. Louis Jaffe wrote in the 1937 Harvard Law Review:

Hence, the group conflict happening today in the legislation and administrative regulatory arenas is old stuff. This is not to say, however, that what is happening today is not different in any significant respects from the past.