Fisheries Management and Rule of Law

Abstract. Fishing is one of the most intensively regulated industries in the U.S. economy. Theoretically, regulating an industry means subjecting it to the rule of law: treating those with an interest in the resource fairly while preserving the public interest in public order, economic efficiency, and conservation. There are, however, two opposing concepts of “rule of law, ” each with deep roots in U.S. legal culture, that conflict with each other and frequently stymie efforts to regulate fisheries successfully. One of these concepts is the classical liberal idea of autonomy, which stresses the individual’s right to pursue his/her self-interest free of state interference. Rule of law here means that the state should guarantee private ordering, treat everyone alike, and promote private enterprise. The other is the Jeffersonian, or republican, idea of participation, which stresses the equal participation of all citizens in self-government. Throughout U.S. history, these two norms have co-existed uncomfortably with each other as sources of legitimacy for regulatory regimes. Liberal thinking predominated in the nineteenth century, although it clearly underlies limited-entry and other property-oriented regimes today. Republican thinking has emerged more recently in co-management regimes that stress the participation of user groups in data-gathering, policymaking, and enforcement. Somewhere in between is the New Deal style of governance, on which the Magnuson Act of 1976 is based.