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This Article concerns the interaction of law and policy and its impact on the formation of rules of law and their implementation. In a modern bureaucratic polity, law and policy interact according to a set formula: law follows policy in the activist state. This Article will analyze the law-follows-policy formula in the context of nuclear power regulation.

Nuclear policy has not kept up with the political or economic climates which have grown skeptical of nuclear power. This failure or inability of the nuclear power bureaucracy to respond effectively to political and economic changes is the essential weakness in the law-follows-policy formula.

Society is experiencing a transformation in nuclear policy which raises serious questions about the future of nuclear regulation and the contours of government-industry relations in complex technological areas. Part II narrates the causes of the transition and explains the implications. In Part II, nuclear energy and regulation will be placed into historic and economic contexts. Part III describes and evaluates the interaction of nuclear law and policy. The danger of the overdependence of law on policy must be recognized. Law and policy interaction forces law to reproduce policy long after the policy choice changes. Correcting misguided policy means correcting the legal system through a bureaucratic fix. Part III describes the current model of legal liability rules and suggests a direction for regulatory reform. Part IV describes what the policy and regulatory futures look like and should look like.


This article was published in 38 Rutgers L. Rev. 187 (1986).