Sharing sovereignty for global regulation: The cases of fuel economy and online gambling

Globalization is sometimes taken as a synonym for market liberalization, because it is claimed that power has flowed from states to markets. Whether happening as a result of undeniable “forces” or some hegemonic consensus, many on both the left and right of politics agree that this is a reality. However, this article argues that states which share sovereignty with market actors are able to influence outcomes beyond their borders. The cases of fuel economy and online gambling regulations are used to illustrate the point. In the former case, Japanese and European industry‐driven regulations are being “exported” in the attributes of the products of their car industries. In the latter, UK market‐friendly regulations are likely to be “exported” to the European region and beyond because of industry support, and market liberalization principles embodied in European Union institutions. Both cases indicate that sharing sovereignty in the process of making and implementing national regulations produces opportunities for global regulation.     

Out of tune or well tempered? How competition agencies direct the orchestrating state

This article analyzes the impact competition agencies have on the orchestrating role of states in domestic private regulation. I argue that these agencies can significantly affect interactions in the governance triangle through the way they apply a “logic of the market” to evaluate agreements between firms. The regulatory framework of European Union competition law has increasingly constrained the ability of firms to take into account broader interests when making agreements to foster social objectives. This logic of the market clashes with the ever‐increasing emphasis governments place on enabling firms to enter into such agreements. I analyze this tension through a case study of a pact of Dutch retailers to collectively introduce higher animal welfare standards for poultry. Using regulatory network analysis I trace the governance interactions between the governance triangle on the one hand (government, non‐governmental organizations, and firms), and the Dutch competition authority, Autoriteit Consument en Markt (ACM) and the European Commission on the other hand. Attempts by the Dutch government to instruct the ACM to be more lenient toward private regulation were blocked twice by the European Commission. As a result, the Dutch government abandoned private regulation as the preferred mode and proposed a bottom‐up process that would generate public regulation as a way to avoid conflict with competition policy. I argue that paradoxically enough the intervention of these non‐majoritarian competition agencies against the “will” of the governance triangle has potentially increased the effectiveness and legitimacy of orchestration processes.     

The Challenges of Consulting the Public on Science Policy: Examining the Development of European Risk Assessment Policy for Genetically Modified Animals

With the growing importance of public engagement in science policy making and declining levels of public trust in food production, the European Food Safety Authority (EFSA) has attempted to embed “good governance” approaches to strengthen scientific independence and open up risk decision making, which include the use of public consultations. However, “opening up” of risk assessment policies reveals some tensions; namely, balancing the goals of scientific excellence and transparency, protecting science from interests, addressing value judgments, and limited opportunities to debate ethical and social issues. EFSA's development of risk assessment policy for genetically modified animals is used as a case study to analyze these tensions. This analysis suggests that in order to fulfill good governance commitments and maintain trust in risk governance, closer cooperation between EFSA and the European Commission is required to provide “space” for debating the broader risk management issues. This publically accessible space may be needed alongside rather than instead of EFSA's consultation.     

Functional regulatory spaces

This article develops the concept of “Functional Regulatory Space” (FRS) in order to analyze the new forms of State action addressing (super) wicked problems. A FRS simultaneously spans several policy sectors, institutional territories and levels of government. It suggests integrating previous policy theories that focused on “boundary-spanning regime,” “territorial institutionalism” or multi-level governance. The FRS concept is envisaged as a Weberian “ideal-type” of State action and is applied to the empirical study of two European cases of potential FRS: the integrated management of water basins and the regulation of the European sky through functional airspace blocks. It will be concluded that the current airspace regulation does match the ideal-type of FRS any better than the water resource regulation does. The next research step consists in analyzing the genesis and institutionalization of potential FRS addressing other (super) wicked problems such as climate change and economic, security, health and immigration issues in different institutional contexts as well as at various levels of governance.     

Regulatory capabilities: A normative framework for assessing the distributional effects of regulation

This paper develops the normative concept of “regulatory capabilities.” It asserts that nobody – individuals, groups, or entities – should be subjected to a regulatory regime without some freedom to determine its nature. Self‐determination in this context means the ability to accept or reject a regulatory regime imposed by others or to develop viable alternative approaches. We use the term “regulatory capabilities” to capture the importance of enabling conditions for regulatory self‐determination. This is particularly important in the transnational context where private, hybrid public–private, and public actors compete for influence, shape domestic regulation, and, in doing so, limit the scope for democratic self‐governance. In short, this paper seeks to contribute to the general debate on the normative foundations of and the requisite conditions for transnational regulation and governance.     

National-Level Family Policies and workers’ Access to Schedule Control in a European Comparative Perspective: Crowding Out or In,and for Whom?

Abstract

This paper examines national-level family policies in a comparative perspective, to see whether they “crowd out” company-level family-friendly policies, namely schedule control. Further, it examines whether this relationship varies for different types of family policies, and for different groups of workers – i.e. distinguished by gender, parenthood status and skill divisions. The paper uses data from 27 European countries in 2010, and applies multilevel random slopes models with cross-level interaction terms. Results show that generous national-level family policies, in particular work-facilitating policies, “crowd in” company-level schedule control provisions, especially for high-skilled workers. However, very generous leave entitlements seem to crowd out schedule control provision.     

On the political economy and limits of crisis insurance: the case of the 2008–11 bailouts

The bailouts of 2008–10 are the most recent in a long series of insurance-like policies designed to limit the losses of those harmed by a crisis of some kind—but enacted after a crisis is under way. This paper analyzes the economics and politics of “crisis insurance” programs. The analysis helps explain why ex-post insurance is popular, why it tends to be undersupplied by private markets, and why governments may be better able to provide it. The analysis also points out that there are limits to what losses can be covered. The routine adoption of new programs to limit losses from crises tends to require greater expenditures through time because of moral hazard problems and the nature of crises. Eventually, this trend may produce “uninsurable” crises. The analysis of this paper suggests that such problems can be moderated, although not eliminated, through appropriate standing polices for ex-post funding of crisis insurance.     

Naming without shaming: The publication of sanctions in the Dutch financial market

Enforcement agencies increasingly disclose or “name and shame” corporate offenders. This article uses responsive regulation as a framework for an empirical study of the impact of non‐anonymous publication of sanctions in the Dutch financial market. These publications are characterized as “naming without shaming”, because they are used for technical guidance rather than with the intention to shame. The findings show that naming offenders functions as a general deterrent in the market for financial intermediaries, but considerably less so in the capital market. In both markets, the publication of sanctions weakened the impact of enforcement. In the capital market, the publications neutralized the seriousness of offenses and contributed to the image of the regulator as powerless. In the market for financial intermediaries, naming offenders was perceived as stigmatizing shaming and led to defiance, rather than compliance. The case study suggests, however, that the publication of sanctions may provide an opportunity for guidance, provided they contain a moral message, rather than technical instruction.     

From “smart regulation” to “regulatory arrangements”

When regulators are faced with practical challenges, policy instrument choice theories can help them find the best solution. However, not all such theories are equally helpful. This paper aims to offer regulators a better alternative to the current policy instrument choice theories. We will specifically address the shortcomings of “smart regulation theory” and present an alternative that keeps the best of that theory while remediating its weak points. Some authors (Böcher and Töller 2003; Baldwin and Black 2008) say that smart regulation theory does not address institutional issues, compliance type-specific response, performance-sensitivity and adaptability of regulatory regime. We have resolved these problems by merging the smart regulation theory with the policy arrangement approach and the policy learning concept. We call the resulting approach “regulatory arrangement approach” (RAA). The central idea of the RAA is to constrain the almost infinite “smart” regulatory options by: the national policy style; adverse effects of policy arrangements of adjoining policies; the structure of the policy arrangement of the investigated policy and competence dependencies of other institutions. The reduction can be so drastic that the potential governance capacity falls below the smart regulation threshold. In other words, no smart regulatory arrangement can be developed in that institutional context unless policy learning occurs. In addition, a “smart” regulatory arrangement is no guarantee that the policy will succeed. For this reason, the performance of the regulatory arrangement is measured and evaluated. Performance below a certain threshold indicates that the regulatory arrangement needs to be adapted, which then results in policy learning. We illustrate the usefulness of this new approach with a secondary analysis of the Flemish sustainable forest management policy.     

An economic theory of a hybrid (competitive authoritarian or illiberal) regime

Recently, not only has dictatorship resurfaced, but a new form of government has appeared that is neither democratic nor dictatorial. There are various names for this new form: “competitive—authoritarian”, “illiberal democracy”, or simply “hybrid”. Some obvious examples are Hungary, Poland and Turkey. Some connect the origin of hybrids in modern times to the rise of populism. Populism is connected to the illiberal or hybrid idea in that populists tend to repress minorities as a way of appealing to the majority. Authoritarian populists typically divide the population into “us” versus “them”. This paper develops a model of how a hybrid can arise from democracy. I introduce a “strongman or strongwoman” as a leader who can implement repression and gain power. I develop a simple model of a “hybrid” regime in which repression is less than that under dictatorship but greater than that under liberal democracy. The hybrid regime is a special case of Wintrobe’s general theory of dictatorship, but it goes further than that by endogenizing equilibrium extremism of the regime as well as repression. I show how the hybrid regime reacts to exogenous shocks, and develop optimal policy for other countries and institutions interested in reducing repression (the UN, US or EU) towards hybrids.     

Social movements and regulatory agencies: Toward a more adequate—and less pessimistic—Theory of “clientele capture”

Many regulatory agencies were established during the Progressive Era and the New Deal, in part out of faith in their capacity to regulate industry in an apolitical and “scientific” fashion. A number of observers—most notably Marver Bernstein—have noted that many regulatory agencies eventually become “captured” by the very interests they are supposedly regulating. This paper first examines the notion of “clientele capture,” focusing in particular on the development of an operational classification of regulatory policies. It then builds upon Bernstein's suggestion that the cycle of decay commences with the demise of the constituency supporting regulation. Through case studies an effort is made to explore (1) the conditions under which a regulatory agency is likely to actively attempt to develop a supportive constituency and (2) the conditions under which a constituency supportive of aggressive regulation is able to effectively monitor regulatory policy (and to be instrumental in preventing slippage) after the decline in public concern with the issue.     

Modes of regulatory governance: A political economy perspective

This article introduces the special issue by presenting a framework for the study of regulatory politics using the analytical tools and approaches of comparative political economy. Having traced the evolution of studies on regulation, it argues that scholars should pay more attention to the systemic features affecting regulation and to the relationship between regulatory policies and their outcomes. The article presents the foundations of an analytical framework based on the “regulatory policy process,” a comprehensive approach that links inputs, outputs, and outcomes. The review of the contributions to this special issue shows that regulatory regimes can be better understood by placing them within the broader political economy of a state or region. A renewed focus on regulatory outcomes can help foresee what one should expect from the impact of a certain regulatory regime on a political‐economic system.     

Strategien und institutionelle Perspektiven nach der Verfassungskrise: „Funktionalistische” und „institutionalistische” Wege zu einem neuen europäischen Verhandlungspaket

The European Council today is the only institution which has the potential and the possibility to lead the EU out of its current “valley of uncertainty”. Under the leadership of a new generation of heads of state, the conclusion of a European package deal may be expected from 2007 onwards, containing three central elements: 1. a “Europe of projects”, identifying policies and projects of common interest, 2. the “flexibilisation” of the EU in order to facilitate European politics among the member states and 3. institutional or constitutional reforms of the European polity, for which the constitutional treaty will remain the single most important point of reference. However, no simple, “optimal” road for the future development of the EU may be anticipated.     

The Role of Elites in Democratization

The role of elites and their policies in the process of regime transformation are not as simple as “rule by the people” implies, once it is recognized that all “real-existing democracies” depend crucially on the role of representatives who act as intermediaries between the citizens and their rulers. Instead of rule by a few vs. rule by all, we have “rule by some politicians” as the outcome. These newly empowered representatives inevitably form an elite institutionally separate from the electorate that has chosen them competitively or the selectorate that has chosen them for their reputation.     

The logic of regulatory impact assessment: From evidence to evidential reasoning

Agencies involved in generating regulatory policies promote evidence-based regulatory impact assessments (RIAs) to improve the predictability of regulation and develop informed policy. Here, we analyze the epistemic foundations of RIAs. We frame RIA as reasoning that connects various types of knowledge to inferences about the future. Drawing on Stephen Toulmin's model of argumentation, we situate deductive and inductive reasoning steps within a schema we call the impact argument. This approach helps us identify inherent uncertainties in RIAs, and their location in different types of reasoning. We illustrate the theoretical section with impact assessments of two recent legislative proposals produced by the European Commission. We argue that the concept of “evidence-based regulatory impact assessment” is misleading and should be based on the notion of “regulatory impact assessment as evidential reasoning,” which better recognizes its processual and argumentative nature.     

From asset to patrimony: the re-emergence of the housing question

Abstract

The global financial crisis has ushered in a major housing crisis in many European countries. The paper seeks to shed light on why, despite massive housing crises, there are few policy efforts at tackling it. Probing into the policy paradigms that have informed housing policies, the paper demonstrates a shift towards housing as an asset before the crisis. Increasingly, housing policies have become interwoven with financial markets. This has led to a major policy mismatch after the crisis: while the return of the ‘housing question’ would have required renewed efforts at establishing housing as a social right, de facto policy makers sought to stabilise financial markets. The result is a paradoxical outcome, where neoliberal market-driven programmes are embedded in increased dependence on family wealth. The article demonstrates the shift from housing as asset to housing as patrimony in three different varieties of residential regimes, represented by Ireland, Denmark and Hungary.     

Can the hidden hand of the market be an effective and legitimate regulator? The case of animal welfare under a labeling for consumer choice policy approach

In Australia, labeling for consumer choice, rather than higher government regulation, has become an important strand of the policy approach to addressing food animal welfare. This paper illustrates the usefulness of “regulatory network analysis” to uncover the potentials and limitations of market‐based governance to address contentious yet significant issues like animal welfare. We analyzed the content of newspaper articles from major Australian newspapers and official policy documents between 1990 and 2014 to show how the regulatory network influenced the framing of the regulatory problem, and the capacity and legitimacy of different regulatory actors at three “flashpoints” of decisionmaking about layer hen welfare in egg production. We suggest that the government policy of offering consumers the choice to buy cage free in the market allowed large‐scale industry to continue the egg laying business as usual with incremental innovation and adjustment. These incremental improvements only apply to the 20 percent or so of hens producing “free‐range” eggs. We conclude with a discussion of when and how labeling for consumer choice might create markets and public discourses that make possible more effective and legitimate regulation of issues such as layer hen welfare.     

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

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.     

An historical description and analysis of pronatalist policies in Italy,Germany and Sweden

The various pronatalist policies enacted between World War I and World War II by three European countries are presented within the context of a “coercive” and “noncoercive” policy dichotomy. The social context in which Italy, Germany, and Sweden enacted pronatalist policies is examined with special emphasis on Italian and German migration policies. An attempt is made to assess the impact of the various pronatalist measures on birth rates. Implications of the study indicate that knowledge of existing overt pronatalist policies and an understanding of the social milieu in which such policies are enacted will help present-day population policy planners.     

Accountability in the EU's para-regulatory state: The case of the Economic and Monetary Union

This article revisits Majone's famous argument about accountability in the regulatory state in reference to the European Union's (EU) Economic and Monetary Union. We show that the EU has entered the stage of a “para-regulatory state” marked by increasing EU regulation in areas linked to core state powers. Despite the redistributive and politicized nature of these policy areas, the EU's “para-regulatory state” has continued to rely on its regulatory model of accountability, focused on decisionmaking processes, and interest mediation. In line with Majone, we describe the model as procedural and contrast it to substantive accountability – which is necessary when regulation has clear redistributive implications. Using two case studies from fiscal policy and monetary affairs, we illustrate the predominance of procedural accountability as exercised by the European Parliament and EU Courts. We complement the empirical analysis with a normative discussion of how substantive accountability could potentially be rendered in both fields.