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Regulatory Unreasonableness.What Is It and Why Is Some Measure of Unreasonableness Inevitable In Any Regulatory System?

by Simon Valentin (Author)

Essay 2018 5 Pages

Business economics - Economic Policy

Excerpt

1 Introduction

In their book Going by the Book[1] from 1981, Bardach and Kagan explore the problem of regulatory unreasonableness and its characteristics and consequences. In this essay, I will demonstrate what the authors mean with regulatory unreasonableness, explain the three different ways in which a regulation can be unreasonable, explain why the authors argue that some measure of unreasonableness is inevitable in any regulatory system and give a conclusion from today’s perspective.

2 Bardach and Kagan’s idea of unreasonable regulation

Very casually regulatory unreasonableness is understood as “the imposition of uniform regulatory requirements in situations where they do not make sense”[2]. More precisely, the authors give the definition that “a regulatory requirement is unreasonable if compliance would not yield the intended benefits” and conclude that “basically, 'unreasonableness' means cost-ineffectiveness”[3], which underlines the strong economic focus of their work. The authors start their examination by distinguishing two different levels of regulatory unreasonableness. Any regulatory system experiences unreasonableness in the process of rule-making, so-called “'rule-level unreasonableness,' which has to do with aggregate economic inefficiency” and unreasonableness at the level of rule-enforcement, so-called “'site-level unreasonableness,' which has to do with particular encounters between enforcers and the regulated”[4]. Clearly, the latter is largely a consequence of the former but yet a distinguishable phenomenon since site-level unreasonableness could occur even if there was no rule-level unreasonableness. For their book, the authors concentrate on the social dimension of unreasonable regulation, namely the individual experiences that people make with unreasonableness which is why they focus on site-level unreasonableness. They argue that negative experiences with site-level unreasonableness on the individual level are a major reason for the general discontent with regulation at the time of their writing because not aggregated costs and rule-making-level unreasonableness but particular cost and perceived unreasonableness at the specific personal case shape the image of and frustration with the regulatory system. The authors argue: “An instance of regulatory unreasonableness can also be experienced as an instance of government-imposed injustice. Each injustice weakens the belief that we live under a system of fair and rational laws. For each 'victim' of regulatory unreasonableness […], the experience of regulatory injustice is exasperating, infuriating, or, even worse, demoralizing”[5]. Studies about the aggregate costs and benefits of regulation used to be common at the time of writing, but the site-level perspective was a new focus and distinguishes this book in particular.[6] Consequently, the book is full of real case examples and firsthand experiences from both sides, from those who are charged with obeying regulation and from those charged with the enforcement of regulations. Bardach and Kagan substantiate their idea of regulatory unreasonableness by characterizing three different ways how a regulation can be unreasonable: lack of effectiveness, lack of efficiency, and lack of positive cost-benefit ratio.

Lack of effectiveness

The first form of unreasonableness is when compliance with a regulation “would not yield the intended benefits”[7]. The regulation is flawed in a way that it does not improve its objective. If for example a regulation mandates factory owners to install a certain safety device in order to improve worker safety but the devise is actually not improving the situation, the regulation is not effective and therefore unreasonable. It costs money without any positive effect regarding the goal of the regulation. This seems to be the easiest to understand unreasonableness.

Lack of efficiency

A regulation is also unreasonable if it is cost-ineffective. This means that compliance with the regulation would actually lead to achieving the expected outcome and improves the situation at least incrementally, but there is another way of achieving this improvement at lower costs. If a regulation, for example, demands all buses to be made wheelchair-accessible, compliance with it would improve the situation for wheelchair-bound citizens and is therefore effective. But if there is an alternative, such as a special taxi service for these people, that would lead to the same outcome at lower costs, the original regulation is not efficient and therefore unreasonable.

Lack of a positive cost-benefit ratio

Finally, a regulation is unreasonable if compliance with the regulation would cause “costs that clearly exceed the resulting social benefits”[8]. Consequently, a regulation can be unreasonable, although it improves the objective for which it was created and there is no cheaper way of achieving this improvement. This is definitely the most difficult category since it compares and relates costs and benefits for different groups of people. The authors give the example of a mandatory installation of a water treatment system that leads to a small increase in the water quality but at very high costs. The regulation is effective, because there is an improvement, and efficient, because there is no cheaper way of achieving the improvement, but in the argumentation of the authors still unreasonable because of a negative cost-benefit ratio. While the other two categories, effectiveness and efficiency, are, at least in theory apart from measurement difficulties, objectively decidable, the evaluation if a regulation falls in this third category is largely dependent on subjective value judgments. There might be clear cases with societal agreement, but in most cases, different groups are affected differently by the regulation and therefore evaluate it differently. If a regulation must have a positive cost-benefit ratio the question is: for whom? There is nothing wrong with rejecting a regulation because one thinks the costs exceed the benefits, but including this in the concept of regulatory unreasonableness might weaken both, the necessary societal discussion about a regulation and the concept of regulatory unreasonableness as a quasi-objective evaluation criterion.

3 The inevitability of regulatory unreasonableness

Before the authors elaborate on the high societal significance of regulatory unreasonableness, which is only briefly touched in section two of this essay, and possible remedies (in part two of the book), they give reasons why some measure of unreasonableness is inevitable in any regulatory system.

At the most abstract level, the problem of regulatory unreasonableness emerges from the inevitable incompatibility between a diverse world of infinite variety and any general rule. The authors argue that all regulations are “inevitably overinclusive”[9] and, thus, impose costs at sites where the regulation is not needed or only leads to small benefits. One problem of regulation is the inevitable inability to foresee all situations. Rules that were made in a certain situation, such as a crisis, may have a large effect in non-crises situations later. Moreover, the urge to achieve equal treatment before the law (and thus political acceptability) can result in rules that apply to situations where there is no need for regulation at all. Site-level unreasonableness emerges inevitably from this tension between equal treatment and diversity and spontaneity.[10] Finally, they refer to the empirical experiences with the regulatory procedures of the previous years in the United States, which they present in their book, to demonstrate that regulation per se increases and that the flexibility of regulation decreases.[11] This development strengthens the tensions between the diverse world and the fix rules, which cause the unreasonableness. In chapter four, the authors argue that a growing legalism, which means focusing on the legal text rather than the context, magnifies this phenomenon. Site-level pursuit is diverted from real improvements (such as improving workers safety) to insuring that the requirements are met because compliance is more important than improvement. Not only is there inevitable unreasonableness in any regulatory system but the authors conclude that in the US this problem is increasing at the time of their writing.

[...]


[1] Bardach, Eugene and Robert A. Kagan. "Going by the Book: Unreasonableness in Protective Regulation." (Philadelphia: Temple University Press, 1981).

[2] Ibid., 58.

[3] Ibid., 6.

[4] Ibid., 7.

[5] Ibid., 28.

[6] Boyum, Keith O. "The Politics of “Regulatory Unreasonableness.” Bardach and Kagan's Going by the Book."Law & Social Inquiry 8.3 (1983): 752-760.

[7] Bardach and Kagan, 1981, 6.

[8] Ibid., 6.

[9] Ibid., 25.

[10] Ibid., 25.

[11] Ibid., 25.

Details

Pages
5
Year
2018
ISBN (eBook)
9783668986251
Language
English
Catalog Number
v491917
Institution / College
University of Toronto – Munk School of Global Affairs and Public Policy
Grade
1,0
Tags
Regulatory Unreasonableness Bardach Kagan

Author

  • Simon Valentin (Author)

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Title: Regulatory Unreasonableness.What Is It and Why Is Some Measure of Unreasonableness Inevitable In Any Regulatory System?