Introduction: Comparing National Styles of Regulation in Japan and the United States

The articles in this issue generally reinforce conventional images of American regulation as often adversarial and legalistic and of Japanese regulation as more informal and cooperative. They also suggest that, in regulating pollution and occupational safety in larger firms, Japan's regulatory style is equally effective and more economically efficient than the American approach. But Japan's style appears less effective when regulation requires changes in elite attitudes, as in the realm of workplace equality for women. Moreover, developments in Japan's financial sector reveal ways in which informal regulation can result in undue deference to business and political interests.     

Regulatory Enforcement in Local Government in Japan

The Japanese inspectors usually adopt an "informal measure-oriented" style in enforcing violations of regulatory statutes. They prefer administrative guidance with no legally binding effect to compliance orders or criminal prosecution. These formal measures, they think, would erode the cooperative relationship with the regulatee, which is believed essential for cost-effective enforcement. In contrast to that in the United States, the Japanese enforcement process lacks citizen participation and information disclosure, this enabling the inspectors to deal with violations at their own pace.     

管制行业反垄断执法权配置分析——以管制度为视角

管制行业在不同程度上存在着反垄断执法问题,其执法权配置有多种模式可供选择,但从管制度的角度看,这一执法权配置应是从行业管制机构向反垄断专门执法机关逐步移转的过程,这也是大多数国家或地区立法与实践的发展趋向,因此,我国相关立法也应作相应完善.     

An Enforcement Taxonomy of Regulatory Agencies

A variety of multivariate techniques were used to develop a taxonomy of regulatory agencies from the first comprehensive study of the disparate enforcement strategies employed by business regulatory agencies in one country. Seven types of agencies were identified: Conciliators, Benign Big Guns, Diagnostic Inspectorates, Detached Token Enforcers, Detached Modest Enforcers, Token Enforcers and Modest Enforcers. Agencies were distinguished primarily according to their orientation to enforcement versus persuasion, according to their commitment to detached (or arms length) command and control regulation versus cooperative fostering of self-regulation, and according to their attachment to universalistic rulebook regulation versus particularistic regulation. Nevertheless, it is not unreasonable to view regulatory agencies as lying on a single continuum from particularistic non-enforcers who engage in cooperative fostering of self-regulation to rulebook enforcers whose policy is detached command and control. This approximates the suggestions of Hawkins and Reiss for distinguishing regulatory agencies according to a "sanctioning/deterrence" versus "compliance" dimension. The predominant regulatory style in Australia, however, is distant from both poles, being a perfunctory regulatory approach which is neither distinctively diagnostic and educative nor litigiously "going by the book"; rather it amounts to "going through the motions". The typology also partially conforms to Black's categorisation of social control as penal, therapeutic, conciliatory and compensatory.     

The Response of Business to Social Regulation in England and Wales: An Enforcement Perspective*

This paper considers business adaptation to legal regulation from an enforcement perspective. It is argued that regulatory agencies and business have a reflexive relationship in which there is a continual process of adaptation and readaptation by one party and then the other. This reflexivity and its implications are discussed with reference to socio-legal research into the regulation of occupational health and safety and environmental pollution in England and Wales.     

食品安全视域下政府监管存在的矛盾及改进策略

目前,突出的食品安全问题与政府管理机制的运行缺陷、内在矛盾有着密切关系。政府在管理职能、管理手段、治理过程、信息传播、法规执行上存在着诸多的问题。因此,厘清矛盾关系,找出监管"失灵"的根源,转变监管理念,调整监管行为,提升监管效能,这样,才能提高政府对食品安全监管的公信力。     

反垄断法私人执行的优越性及其实现——兼论中国反垄断法引入私人执行制度的必要性和立法建议

反垄断法私人执行的立法和实践始于美国,现在已经成为大多数国家的必然选择.反垄断法的私人执行具有自发性优势和比较优势两大优势,"赔偿功能"和"威慑功能"是私人执行"自发性优势"的主要体现,而"救济功能"和"指示功能"则是私人执行"比较优势"的主要表现.为了充分实现反垄断法私人执行的优越性,在制度设计上应遵循"法律上可能,经济上有利"的原则.为了促进我国反垄断法的有效实施,应引入私人执行制度,并在反垄断立法中对私人执行制度作出详细的规定.     

Moving Beyond Command-and-Control: Reflexivity in the Regulation of Occupational Safety and Health and the Environment

Direct or "command-and-control" regulation has had limited success in dealing with occupational health and safety and with environmental regulation. This lack of success has led policymakers to experiment with self-regulation as an alternative means of achieving the goals of social regulation. The economic subsystem fails to acknowledge its social identity and, therefore, appears to be blind to its negative performance regarding the environment and the workplace. The authors of this paper argue that moving beyond command-and-control can be feasible and desirable, at least to a certain extent, but that pitfalls are omnipresent. "Regulatory dilemmas" need to be solved, sound empirical studies need to be conducted, and a guiding theory needs to be drafted. To achieve these goals, the authors suggest use of the key concept of "reflexivity," which refers to the economic organization's relationship with itself. The practical usefulness of this theoretical concept is explored against the background of regulatory practice in the areas of occupational safety and health and the environment. It is concluded that a mode of reflexive administrative law requires a "negotiating government," which adopts a mixture of strategies and learns to cope with issues like third-party interests, access to information, and enforcement.     

Reforming Natural Gas Fracking Regulations in 2017–2018: How Should States Enforce Regulations?

While much scholarly work has been published on hydraulic fracturing regulatory frameworks, there is little discussion on the enforcement mechanisms of these regulations and statutes. This article explores state hydraulic fracturing regulations and the expansion of a criminal framework to enforce compliance. More specifically, this article takes a comparative look at fracking enforcement regimes in California and several states with the most hydraulic fracturing activities. First, the article discusses fracking's economic benefits and environmental issues. The article then analyzes federal regulations, (which essentially leaves the bulk of regulation and enforcement to state and local governments) and state enforcement systems in California and the four states with the most fracking wells (Texas, Wyoming, Pennsylvania, and Colorado). California, a state that is pushing for more renewable resources, has robust regulations under Senate Bill 4. In the end, states that rely heavily on fracking should reform the enforcement mechanisms to disincentive noncompliance. Regulatory regimes in the other states appear to have deficiencies that could be remedied by adopting stricter enforcement mechanisms—such as criminal sanctions—that would disincentivize noncompliance, which could lead to large-scale environmental disasters. This article postulates that a model system incorporating a variety of methods including increased criminal enforcement could provide for proper remedies, justice, and deterrence. An ideal enforcement framework for effective deterrence should focus on transparency, flexibility, trusted delegation, and proportionality.     

The "Compliance" Trap: The Moral Message in Responsive Regulatory Enforcement

Simple deterrence will often fail to produce compliance commitment because it does not directly address business perceptions of the morality of regulated behavior. Responsive regulation, by contrast, seeks to build moral commitment to compliance with the law. This article shows that a regulator can overcome the deterrence trap to improve compliance commitment with the skillful use of responsive regulatory techniques that "leverage" the deterrence impact of its enforcement strategies with moral judgments. But this leads it into the "compliance trap." The compliance trap occurs where there is a lack of political support for the moral seriousness of the law it must enforce, such as is the case with cartel enforcement in Australia. In these circumstances, business offenders are likely to interpret the moral leveraging of responsive regulation as unfair or stigmatizing, and business perceptions of regulator unfairness are likely to have a negative influence on long-term compliance with the law. Moreover, big businesses that perceive regulatory enforcement as illegitimate are also likely to actively lobby for the political emasculation of the regulator. In these circumstances, most regulators are likely to avoid conflict by taking the easy option of enforcing the law "softly," and therefore ineffectively.     

Dimensions of Enforcement Style: Factoring in Regulatory Autonomy and Capacity

This article explores how the concept of enforcement style can be adapted to be more analytically useful in the study of regulatory behavior and its effects in developing countries. In its first part, the article sets forth a dimensional conception of enforcement style and suggests two new dimensions to incorporate the variations in the autonomy and capacity of regulatory agencies that are so significant in developing countries. In its second part, the article uses this analytical framework to compare the enforcement styles of state environmental agencies in two Brazilian states, São Paulo and Pará.     

Regulatory Failure and the Collapse of Japan's Home Mortgage Lending Industry: A Legal and Economic Analysis

This article analyzes the dynamics of contemporary cooperation and conflict in Japanese financial regulation through the prism of the "jusen problem," the collapse of Japan's home mortgage lending industry in the 1990s. The jusen problem is one of the most striking examples of regulatory failure, strategic interest group bargaining, and large-scale dispute resolution in Japanese history.     

论我国环境执法机制的完善——从规制俘获的视角

规制俘获是被规制者对规制机构的一种支配和控制。由于规制机构所享有的宽泛的自由裁量权、被规制对象与规制受益人对规制过程参与的非对等性以及规制主体与被规制对象的利益结盟等原因,我国环境执法过程中出现了＂规制俘获＂,其表现为环境执法不严。为破解这一迷局,必须规范自由裁量权、强化环境保护目标责任制,并在各环境单行法中引入环境公民诉讼。     

Revisiting the Role of Negotiation and Trivialization in Environmental Law Enforcement

Using an empirical assessment of the use of enforcement undertakings by the Environment Agency and the engagement of the courts with the recently enacted sentencing guidelines for environmental offences, this article argues that the enforcement of environmental law is undergoing significant change. This change manifests itself in an increased reliance on written negotiated agreements in the form of enforcement undertakings by the Enivironment Agency and the willingness of the courts to hand down significant fines in cases against certain types of polluters. These new dynamics suggest that negotiation continues to play an important role in the enforcement of environmental law, albeit in a contractualized form. The application of the sentencing guidelines conversely suggests that environmental offences are no longer trivialized by the courts. Taken together, these emerging dynamics not only create specific incentives between agencies and offenders but also call into question established understandings and perceptions of regulatory enforcement.     

Editor's Introduction: Understanding Regulatory Enforcement

This issue of Law & Policy adds to the growing body of empirical case studies of decision-making and enforcement in regulatory agencies. Summarizing that research, regulatory enforcement styles can be described in terms of two dimensions, one concerning the ways in which regulatory violations are defined and punished, the other concerning outcomes, described in policy-evaluative terms. In explaining variation in enforcement style, existing studies point to three sets of factors: characteristics of the regulatory "legal design"; features of agencies' "task environment"; and the regulatory "political environment." Weighting the relative importance of these factors, however, is difficult because of the number and fluidity of variables and the adaptiveness of regulatory agencies.     

BARGAIN AND BLUFF: Compliance Strategy and Deterrence in the Enforcement of Regulation

A strategy of compliance in which enforcement agents rely on negotiation is identified as a characteristic feature of water pollution control work. The strategy arises from the nature of the conduct and activities subject to regulation and from the need to maintain a continuing relationship with the regulated. In securing compliance regulatory agents shape their enforcement tactics by reference to assumptions held as to why polluters fail to comply. Bargaining is central to compliance strategy, but if a conciliatory approach fails, a more threatening posture will be taken in which a variety of mores, including bluffs about legal sanctions, may be employed. Law enforcement is treated as a matter of compliance as well as compulsion.     

The Dangers of Hanging Baskets: 'Regulatory Myths' and Media Representations of Health and Safety Regulation

The successful enforcement of health and safety regulation is reliant upon the ability of regulatory agencies to demonstrate the legitimacy of the system of regulatory controls. While 'big cases' are central to this process, there are also significant legitimatory implications associated with 'minor' cases, including media-reported tales of pettiness and heavy-handedness in the interpretation and enforcement of the law. The popular media regularly report stories of 'regulatory unreasonableness', and they can pass quickly into mainstream public knowledge. A story's appeal becomes more important than its factual veracity; they are a form of 'regulatory myth'. This paper discusses the implications of regulatory myths for health and safety regulators, and analyses their challenges for regulators, paying particular attention to the Health and Safety Executive (HSE) which has made concerted efforts to address regulatory myths attaching to its activities. It will be shown that such stories constitute sustained normative challenges to the legitimacy of the regulator, and political challenges to the burgeoning regulatory state, because they reflect some of the key concerns of late-modern society.     

Greening Industry Without Enforcement? An Assessment of the World Bank's Pollution Regulation Model for Developing Countries

The best comparative and overview source now available for knowledge about pollution regulation in developing countries is the 2000 World Bank policy research report called Greening Industry . The World Bank finds that there is a new model for pollution regulation in lower- and middle-level income countries that is an alternative to "traditional" command and control regulation. The new model stresses flexible norms and nonstate pressures on regulated enterprises coming from communities and markets. This article presents an investigation into this new model. It finds that the prevalence of weak law enforcement may undermine the new model's potential to control pollution in developing countries. It also contends that social and market pressures only occur under certain circumstances often not found in lower- and middle-level income countries. Therefore, the article concludes that developing countries require smart mixes of various regulatory instruments appropriate in the given state and nonstate regulatory capacities, instead of contrasting state and nonstate regulation.     

美国联邦环境法的公民诉讼制度

公民诉讼制度作为自力救济措施是美国环境保护法律制度中的特色之一。该制度赋予公民借助法院的权力 ,监督行政机关执行环境保护法律以达到加强执法或消除污染、改善环境的目的。研究该制度对我国加强环境保护法律的执行、提高公众的环境保护意识具有一定的作用。     

Reconsidering Styles of Regulatory Enforcement: Patterns in Danish Agro‐Environmental Inspection

This study addresses enforcement styles of regulatory inspectors, based on an examination of the municipal enforcement of agro‐environmental policies in Denmark. Our findings make three contributions to the regulatory literature. One contribution is to add empirical support for theorizing about inspectors' enforcement styles as consisting of multiple components, rather than a single continuum. We show that inspectors' enforcement styles comprise the degree of formalism and the degree of coercion that they exercise when carrying out inspections. A second contribution is in showing the relationship of different types of enforcement styles to the two underlying dimensions of the concept. A third contribution is an examination of the ways in which inspectors' enforcement styles relate to their enforcement actions. The consistency of our findings with those of other studies suggests that the dimensions and types of inspectors' enforcement styles that we observed in Denmark can be generalized to other settings.