Abstracts on Regulation

Frontline Safety: Understanding the Workplace as a Site of Regulatory Engagement

Responsive Excellence

Innovation and the State: Finance, Regulation, and Justice

Political control or legitimacy deficit? Bureaucracies' symbolic responses to bottom-up public pressures

Frontline Safety: Understanding the Workplace as a Site of Regulatory Engagement.

Regulatory crisis: negotiating the consequences of risk, disasters and crises

Compliance costs, regulation, and environmental performance: Controlling truck emissions in the US

Fear, duty, and regulatory compliance: lessons from three research projects

It's Now Or Never! Using Deadlines as Nudges

The Gig Economy & The Future of Employment and Labor Law

One HACCP, Two Approaches: Experiences with and Perceptions of the Hazard Analysis and Critical Control Points Food Safety Management Systems in the US and the EU.

Reregulation and the Regulatory Timeline

Monitoring Global Supply Chains

Organizational Challenges to Regulatory Enforcement and Compliance A New Common Sense about Regulation

Rethinking Compliance

Anti-cartel thrillers as a new film genre: How regulator-produced films portray and problematize cartels and communicate deterrence

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Frontline Safety: Understanding the Workplace as a Site of Regulatory Engagement
Paul Almond, University of Reading

The concept of frontline safety encapsulates an approach to occupational health and safety that emphasizes the “other side of the regulatory relationship”—the ways in which safety culture, individual responsibility, organizational citizenship, trust, and compliance are interpreted and experienced at the local level. By exploring theoretical tensions concerning the most appropriate way of conceptualizing and framing frontline regulatory engagement, we can better identify the ways in which conceptions of individuals (as rational, responsible, economic actors) are constructed and maintained through workplace interactions and decision making as part of the fulfillment of the ideological and constitutive needs of neoliberal labor markets.

 
Responsive Excellence
John Braithwaite, The Australian National University

Being a responsive regulator means responsiveness to the regulated community and its community of stakeholders (such as consumers of a regulated product or service). More fundamentally it means being responsive to the entire environment in which the regulator swims . Contemporary debates excessively narrow that to responsiveness to the regulator’s risk environment. 1 Risk responsiveness is important. For a regulator aspiring to achieve excellence, however, responsiveness to opportunities is more important than responsiveness to risk. The excellent regulator scans for cases that offer strategic, macro opportunities to create public value, potentially by transforming an entire industry, even an entire economy or a crucial aspect of freedom in a society. Put another way, risk management goes to the basics of regulation; seizing opportunities for transformation goes to the heart of regulatory excellence.

 
Innovation and the State: Finance, Regulation, and Justice
Cristie Ford, Peter A. Allard School of Law

From self-driving cars to subprime mortgage-backed securities, innovation carries both risk and opportunity. It also throws up profound regulatory challenges. As it evolves, innovation continually undermines, circumvents and sidelines regulatory structures designed to accommodate it. Here, Cristie Ford investigates the relationships between contemporary regulatory approaches and private sector innovation, and considers the implications of both for broader social welfare priorities including equality and voice. Regulation is at the leading edge of politics and policy in ways not yet fully grasped. Seemingly innocuous regulatory design choices have clear and profound practical ramifications for many of our most cherished social commitments. Innovation is a complex phenomenon that needs to be understood not only in technical terms, but also in human ones. Ford argues for a fresh approach to regulation that recognises innovation for the regulatory challenge it is, and that binds our social values and our regulatory tools ever more tightly together.

 
Political control or legitimacy deficit? Bureaucracies' symbolic responses to bottom-up public pressures
Sharon Gilad, The Hebrew University of Jerusalem

Public administration research has thus far focused on the responses of bureaucracies to top-down pressures by elected politicians. By comparison, bureaucracies' responses to bottom-up public pressures, such as media coverage and social protest, and the micro-mechanisms that underlie the variation in their response, have received less attention. This study contributes to current literature by analysing the extent to which subjection to political control shapes the direct response of bureaucracies to bottom-up public pressures. Based on current literature, we explore two distinct micro-mechanisms: on the one hand, building, inter alia, on principal–agent theory, we would expect higher levels of political control to render bureaucracies more attentive to public pressures in order to preempt intervention by politicians who are reliant on public support (the principal–agent mechanism). Conversely, building on regulation theory, we would expect autonomous agencies to exhibit their attentiveness to salient public pressures in order to compensate for their precarious democratic legitimacy (the legitimacy-deficit mechanism). Empirically, we analyse the responses of a diverse set of 36 bureaucracies to the unprecedented social protests that took place in Israel during 2011. We focus on bureaucracies', including independent agencies', symbolic responses via advertising campaigns. Our analysis shows that higher levels of political control enhanced the inclination of bureaucracies to engage in symbolic interactions in response to the social protests, supporting our extended version of the principal–agent model.

 
Frontline Safety: Understanding the Workplace as a Site of Regulatory Engagement.
Garry Gray, University of Victoria

The concept of frontline safety encapsulates an approach to occupational health and safety that emphasizes the “other side of the regulatory relationship”—the ways in which safety culture, individual responsibility, organizational citizenship, trust, and compliance are interpreted and experienced at the local level. By exploring theoretical tensions concerning the most appropriate way of conceptualizing and framing frontline regulatory engagement, we can better identify the ways in which conceptions of individuals (as rational, responsible, economic actors) are constructed and maintained through workplace interactions and decision making as part of the fulfillment of the ideological and constitutive needs of neoliberal labor markets.

 
Regulatory crisis: negotiating the consequences of risk, disasters and crises
Bridget M. Hutter, London School of Economics and Political Science

Using a new concept - 'regulatory crisis' - this book examines how major crises may or may not affect regulation. The authors provide a detailed analysis of selected well-known disasters, tracing multiple interwoven sources of influence and competing narratives shaping crises and their impact. Their findings challenge currently influential ideas about 'regulatory failure', 'risk society' and the process of learning from disasters.

 
Compliance costs, regulation, and environmental performance: Controlling truck emissions in the US
Robert A. Kagan, University of California, Berkeley

When explaining regulatory policymaking and the behavior of regulated business firms, scholars have supplemented economic models by emphasizing the role of public-regarding entrepreneurial politics and of normative pressures on firms. This article explores the limits of such entrepreneurial politics and ‘‘social license’’ pressures by examining regulation of emissions from diesel powered trucks in the US. We find that the economic cost of obtaining the best available control technology – new model lower emissions engines – has: (i) limited the stringency and coerciveness of direct regulation of vehicle owners and operators; (ii) dwarfed the reach and effectiveness of the governmental programs that subsidize the purchase of new less polluting vehicles; and (iii) elevated the importance of each company’s ‘‘economic license’’ – as opposed to its ‘‘social license’’ – in shaping its environmental performance. The prominence of this ‘‘regulatory compliance cost’’ variable in shaping both regulation and firm behavior, we conclude, is likely to recur in highly competitive markets, like trucking, that include many small firms that cannot readily either afford or pass on the cost of best available compliance technologies.

 
Fear, duty, and regulatory compliance: lessons from three research projects
Robert A. Kagan, University of California, Berkeley

Socio-legal explanations of law-abidingness in regulated business enterprises, as well as individuals, point to three basic motivational factors; fear of detection and legal punishment; concern about the economic and political consequences of acquiring a bad reputation among customers, employees, politicians, journalists, and social advocacy organizations; and an internalized sense of duty, that is, the desire to conform to learned norms or acquired beliefs about right and wrong, such as law-abidingness or responsible business behavior. In this paper, we will draw on three research projects of our own, as well as published studies by other scholars, to explore the interaction of these variables in shaping compliance and beyond compliance behavior by business firms.

 
It's Now Or Never! Using Deadlines as Nudges
Daphna Lewinsohn-Zamir, The Hebrew University of Jerusalem

Incorporating behavioral insights into regulation is plausibly the most significant development in regulatory theory and practice in recent years. Behaviorally informed regulation encourages self-benefiting and socially desirable behaviors with little intrusion on autonomy. Drawing on new empirical findings, this article puts forward the hitherto overlooked possibility of employing the deadline effect as a regulatory tool. Deadlines serve as an antidote to procrastination and forgetfulness. Many empirical and experimental studies have examined the use of deadlines in marketing. This study explores the possible use of deadlines by legal policy makers. It describes two survey experiments, a randomized field experiment and a natural experiment, which suggest that deadlines may encourage self-benefiting and socially desirable behaviors, and that relaxing deadlines may discourage less desirable behavior. The article discusses the practical and normative aspects of using deadlines as a regulatory means, compared to alternative tools, such as default rules and required choices.

 
The Gig Economy & The Future of Employment and Labor Law
Orly Lobel, University of San Diego School of Law

In April 2016, Professor Orly Lobel delivered the 12th Annual Pemberton Lecture at the 9th Circuit Court of Appeals. Lobel asks, what is the future of employment and labor law protections when reality is rapidly transforming the ways we work? What is the status of gig work and what are the rights as well as duties of gig workers? She proposes four paths for systematic reform, where each path is complementary rather than mutually exclusive to the others. The first path is to clarify and simplify the notoriously malleable classification doctrine; the second is to expand certain employment protections to all workers, regardless of classification, or in other words to altogether reject classification; the third is to create special rules for intermediate categories; and the fourth is to disassociate certain social protections from the work.

 
One HACCP, Two Approaches: Experiences with and Perceptions of the Hazard Analysis and Critical Control Points Food Safety Management Systems in the US and the EU.
Michelle Pautz, University of Dayton

This article explores the differences in the use of the Hazard Analysis and Critical Control Point (HACCP) system to manage food safety risks in the food chain from farm to fork in the EU and the United States. In particular, this article investigates the current uses and potential expansion of HACCP as a mechanism for the delivery of safe agricultural products, particularly safe produce. Using data derived from semi-structured interviews with regulatory actors in the EU and the United States, this article argues that the different approach to HACCP is a result of differing ideas about the role that it plays in the governance of food safety and the different concepts of the role of regulation in securing safe food. Finally, the article explores the difficulties of utilizing HACCP to manage produce safety risks and raises further challenges that must be met to ensure that HACCP can successfully fulfill its potential as a governance mechanism.

 
Reregulation and the Regulatory Timeline
Arden Rowell, University of Illinois College of Law

Regulation is often casually conceived of as functioning like a binary on/off switch: as if an area, issue, or industry is either regulated or not. While this binary model of regulation can be useful, it also decontextualizes regulatory decisions from their position in time, and thus obscures important ways in which regulators are constrained and incentivized by past and future decisions. As an alternative, we present a timeline approach to regulation. The timeline approach is particularly helpful in illustrating the ways that earlier regulatory decisions create vestigial effects for later related decisions, and for highlighting the informational advantage that later regulators have over regulators earlier in the timeline. These temporally contextualized qualities are especially important under conditions of reregulation, which arise when a previously deregulated issue is regulated once again. Applying insights from financial option theory, we show how lessons from the timeline approach can be used to enhance regulatory decision-making at all stages on the timeline.

 
Monitoring Global Supply Chains
Jodi Short, University of California, Hastings College of the Law

Firms seeking to avoid reputational spillovers that can arise from dangerous, illegal, and unethical behavior at supply chain factories are increasingly relying on private social auditors to provide strategic information about suppliers’ conduct. But little is known about what influences auditors’ ability to identify and report problems. Our analysis of nearly 17,000 supplier audits reveals that auditors report fewer violations when individual auditors have audited the factory before, when audit teams are less experienced or less trained, when audit teams are all-male, and when audits are paid for by the audited supplier. This first comprehensive and systematic analysis of supply chain monitoring identifies previously overlooked transaction costs and suggests strategies to develop governance structures to mitigate reputational risks by reducing information asymmetries in supply chains.

 
Organizational Challenges to Regulatory Enforcement and Compliance A New Common Sense about Regulation
Susan Silbey, Massachusetts Institute of Technology

We examine academic research laboratories as examples of intractable governance sites. These spaces often elude regulatory warnings and rules because of the professional status of faculty members, the opacity of scientific work to outsiders, and loose coupling of policy and practice in organizations. We describe one university’s efforts to create a system for managing laboratory health, safety, and environmental hazards, thereby constraining conventional faculty habit to ignore administrative and legal procedures. We demonstrate the specific struggles safety managers face in creating system responsiveness, that is, feedback to re-channel noncompliant laboratory practices. We show how faculty members are buffered from the consequences of their activities, thus impeding the goals of responsibility and accountability. We conclude by asking where such pockets of intractability reside in other organizations and whether the surrounding buffer, if there is one, may nonetheless paradoxically create an effective margin of safety.

 
Rethinking Compliance
Daniel Sokol, University of Florida Levin College of Law

This article addresses optimal deterrence and its limits in the context of creating a more effective mechanism for antitrust compliance to take hold in businesses. We suggest proactive encouragement of compliance programs. Antitrust authorities should work with the business community to create a regulatory scheme that rewards good behavior while punishing bad behavior. To do so, antitrust authorities need to understand how to create and sustain compliance efforts within a company. The proper role of an antitrust compliance program should be to ensure compliance with the law and to promote ethical behaviour by and between companies as part of good corporate governance. Antitrust authorities should play a role in encouraging and supporting this in the same way other enforcement authorities do (for example in relation to FCPA / anti-bribery enforcement). We argue that from a policy perspective, antitrust enforcement should not just be about punishment but about changing normative values within organizations.

 
Anti-cartel thrillers as a new film genre: How regulator-produced films portray and problematize cartels and communicate deterrence
Judith van Erp, Utrecht University

This article directs the ‘visual turn’ in criminology to corporate crime, a topic that has been understudied by cultural criminologists. A recent trend of corporate crime movies suggests that film can compellingly critique economic crime and unethical business cultures. This article studies how law enforcement agencies, particularly competition authorities, have connected with this trend by using film in their communicative strategy. This article introduces the emerging genre of anti-cartel enforcement thrillers: regulator-produced realistic docudramas in which fictional cartels are exposed and punished. These films’ narratives about cartel enforcement are reconstructed by studying how the films portray cartels, perpetrators and their motives, and the regulator. An analysis of four films produced in four jurisdictions demonstrates that the films deter only to the extent that the local legal and political-economic context allows: the British film reflects that country’s neoliberal ‘pro-business’ climate, while the Swedish film depicts businesses as socially responsible and the Dutch film is pragmatic rather than moralistic. Only the Australian film is explicitly punitive in its narrative as well as its imaginary, and exemplifies the persuasive potential of film in enforcement.