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A regulatory agency is captured if, instead of the public interest, it pursues the interests of powerful firms it is intended to regulate. Scholars disagree about which agencies are captured, how they become captured, and what reforms, if any, can prevent capture. There is consensus on one issue: capture is a vice.In this Article, I argue that capture can be a virtue. When powerful interest groups thwart justified regulation, the optimal strategy for pursuing that regulation may be to indirectly empower interest groups that stand to profit from it in the long-run. Legislation creating new interest groups — or altering the incentives of existing ones — can develop a political economy that will support public-interested regulation. Currently dominant interest groups may not be able to anticipate and suppress this long-term threat to their power.This Article describes how legislation that changed the dynamics of interest group power has led to regulation — on climate change, air bags, and toxic waste — that had been previously blocked by powerful industries. It offers a novel theoretical account of why dominant interest groups predictably fail to stop legislation that empowers rival interest groups over time. It suggests reforms to administrative, tort, and insurance law that can be expected to lead to desirable, but currently unachievable, regulation. It defends virtuous capture as an empirically realistic and normatively permissible means to achieve those ends.

Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must satisfy high, initial informational thresholds to regulate, so they postpone rulemaking in the face of uncertainty about the effects of new technologies. But while regulators passively acquire more information, fledgling industries consolidate and become politically entrenched. By the time agencies can justify regulation, the newly entrenched industries have the political capital to thwart them.his Article offers a prophylactic against this predictable regulatory failure. It defends an experimentalist model of regulation, in which agencies are empowered to impose moratoria on risky emerging technologies while regulators organize experiments to learn about the risks they pose and the means to mitigate them. The agency-coordinated experiments would expedite the promulgation of empirically informed rules. The moratoria would extend the political window for regulatory action and protect the public in the interim. The Article applies this experimentalist model to the regulation of fracking, e-cigarettes, and autonomous vehicles. It also identifies legal strategies for implementing experimental regulation under existing law. It challenges the conventional wisdom that agencies should postpone regulation until they can confidently predict the effects of new risky technologies.

Why has the EPA not regulated fracking? Why has the FDA not regulated e-cigarettes? Why has NHTSA not regulated autonomous vehicles? This Article argues that administrative agencies predictably fail to regulate emerging risks when the political environment for regulation is favorable. The cause is a combination of administrative law and interest group politics. Agencies must satisfy high initial informational thresholds to regulate, so they postpone rulemaking in the face of uncertainty about the effects of new technologies. But while regulators passively acquire more information, fledgling industries consolidate and become politically entrenched. By the time agencies can justify regulation, the newly entrenched industries have the political capital to thwart them. This Article offers a prophylactic against this predictable regulatory failure. It defends an experimentalist model of regulation, in which agencies are empowered to impose moratoria on risky emerging technologies while regulators organize experiments to learn about the risks they pose and the means to mitigate them. The agency-coordinated experiments would expedite the promulgation of empirically informed rules. The moratoria would extend the political window for regulatory action and protect the public in the interim. The Article applies this experimentalist model to the regulation of fracking, e- cigarettes, and autonomous vehicles. It also identifies legal strategies for implementing experimental regulation under existing law. It challenges the conventional wisdom that agencies should postpone regulation until they can confidently predict the effects of new risky technologies.