Business Response to Regulation: An Economist's Perspective

This chapter presents an economist's perspective on the interrelationship of the compliance and enforcement decisions of business and regulators in the context of regulations governing occupational health. Assuming profit-maximizing firms and harm-minimizing enforcement agencies, it is argued that a degree of preventive activity would be undertaken by businesses even in the absence of regulation. However, if employees are not fully informed about the risks of the workplace, it is likely that the profit-maximizing level of prevention will be less than socially optimal, and consequently there will be a need for regulation. An enforcement agency which attempts to minimize harm through inducing compliance with regulatory standards will be faced with similar informational difficulties to individual employees, and this suggests some scope for cooperative gains with individual firms through negotiated compliance, rather than prosecution.     

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.     

The determinants of health policy, a case study: regulating safety and health at the workplace in Sweden

This article analyzes and criticizes the " technocratic " view of occupational health and safety policies, which sees the values of the personnel in "post-industrial" regulatory agencies as the most important determinant of those policies. It takes an alternate position, which explains occupational health and safety policies as primarily resulting from the different degrees of political power of the two major classes (capital and labor), and from the set of influences exerted on the regulatory agencies by the instruments (e.g., parties, unions, trade organizations) of those classes. It shows how an analysis of the historical evolution of those classes in Sweden and their conflict in both civil and political societies explains Swedish occupational health and safety policies better than a mere analysis of the regulators' views. And it concludes that the occupational health and safety policies in Sweden are not identical to those in the U.S.--as the " technocratic " theorists assume--but rather offer more protection to the workers than U.S. policies do. This situation is a result of labor having more power in Sweden than it has in the U.S. The different class formations and class behavior in the two societies are compared, and the implications of this comparison for occupational health and safety policies are discussed.     

Workers’ risk underestimation and occupational health and safety regulation

The standard treatment of occupational risk in the labour market is conducted in terms of the theory of compensating wage differentials, the basic characteristic of which is that workers can fully estimate actual occupational risks. However, research in cognitive psychology, and recent advances in economic psychology, suggest that individuals consistently underestimate risks associated with accidents. In this paper, we discuss the case when the workers systematically underestimate job risks. After presenting the standard treatment of occupational risks, and of health and safety at work regulation, we then proceed to incorporate the idea of job risk underestimation. The paper discusses the types and impact of regulation on health and safety effort in a simple framework in which workers’ beliefs concerning accident risks also play a role. The paper shows that a particular type of regulatory intervention is necessary for the risk underestimating workers not to suffer a welfare loss.     

Regulatory Agencies and Interest Groups in Occupational Health and Safety in Great Britain and West Germany: A Perspective from West Germany*

In this paper, results are introduced of an empirical study which investigated the practice of occupational health and safety regulation in two countries, Great Britain and West Germany. The analysis concentrates on the specific relationship that regulatory agencies and the concerned interest groups, employers and trade unions, develop in the two stages of policy formulation and implementation of health and safety regulation. Results show that interest groups actively participate in the regulation-making systems in both countries. Their policy pursued in this process is influenced and mediated by their actual resources as well as by individual views and assessments of each side's representatives. In Germany, a strong fragmentation with numerous private and quasi-governmental bodies entitled to formulate standards makes it difficult for the interest groups to concentrate on the competent and important committees. In contrast, we find a clearer responsibility of bodies and committees in the case of Britain. In both countries, enforcement policy prefers an advisory and persuasive style even though the legal backgrounds are quite different.     

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.     

Theory and Practice of Regulatory Enforcement: Occupational Health and Safety Regulation in British Columbia*

Data about the activities of occupational health and safety officials in British Columbia is utilized to explore competing explanations for the overwhelming prevalence of persuasion over punishment in regulatory enforcement. By plotting the compliance histories of individual firms, this study demonstrates that many offenders repeatedly commit the same infraction. Few of these repeat offenders are punished. These findings suggest that the very limited use of penalties is not a result of the vast majority of firms being good apples induced to comply by mechanisms of social control other than punishment. Rather, there appears to be institutionalized tolerance of widespread violations. The enforcement deficit may be partly explained by such aspects of regulatory structure as the ongoing relationship between regulated firms and field officers who are the gatekeepers of the penalty process.     

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.     

Health and Safety at Home: Private and Public Responsibility for Unsatisfactory Housing Conditions

This paper reviews two legislative approaches intended to control housing conditions in the rented sector - the landlords' contractual obligations, and the powers of local authorities. The authors argue that the landlords' covenants are almost totally ineffective, and that it now rests on local authorities to protect the health and safety of tenants. Breaches of the implied covenants that houses should be fit and in repair will provide tenants with a legal action against their landlords. However, the tenant's standing is now so weak that these covenants fail to provide protection. The Housing Act 2004 introduced a regulatory framework based upon assessing the risks to the health and safety - the Housing Health and Safety Rating System (HHSRS) - giving local authorities tools to ensure that housing is as safe and health as possible.
The history of the regulation of housing conditions also reveals important insights into the nature of private and public regulation.     

Private roles in food safety provision: the law and economics of private food safety

Private food safety standards play a crucial role in ensuring the safety of the foods we consume. A voluntary instrument, private standards are so widespread to have become de facto mandatory for suppliers who wish to access the most profitable markets. Developed by retailers and business coalitions and enforced through third-party certification, private food safety standards constitute one of the principal food safety governance instruments of agribusiness value chains. Albeit private and voluntary, such standards have profound public implications because they contribute to food safety and protect consumers’ health. This article uses law and economics theory to identify their strengths and vulnerabilities and understand the relationship between public and private regulation. Specifically, it examines whether private standards can fulfill the public interest objective of protecting consumers’ health and whether they compete with or rather complement public regulation. The article argues that private standards have emerged in response to food scares to coordinate complex food value chains and have become ever more relevant in the context of intense market globalization, an area in which public regulation often failed. Among the advantages of private standards, are their flexibility and ability to rapidly respond to new risks. Through their focus on management-based regulation and strong market incentives for producers, private standards promote compliance better than traditional inspection methods. Private standards also present several gray areas including increased risk of capture due to their limited transparency and gaps in enforcement by third-party certifiers. The article suggests areas that deserve additional scrutiny, especially the opacity of standards vis-à-vis consumers and the public sector and the quality and reliability of third party certification.     

Punish Once or Punish Twice: A Theory of the Use of Criminal Sanctions in Addition to Regulatory Penalties

Though clearly distinct in nature and procedure, both regulatoryagencies and courts frequently rely on similar instruments tosanction the same or very similar kinds of illegal behavior.In this article, we develop a theory of the use of criminalsanctions in addition to regulatory penalties. We show that,even though it is generally more effective to have a penaltyimposed by a regulatory agency rather than by the courts, undersome conditions it is optimal to have both. The article providesthree arguments: agency costs when delegating law enforcement,legal error, and collusion between a regulatory agency and anoffender. The objective of the article, though, is not limitedto the determination of the theoretical conditions that canmake the use of both sanctioning schemes optimal. Our analysisis also relevant to the application of a specific legal doctrine,the Double Jeopardy Clause.     

Variations in Regulatory Enforcement Styles

This paper examines intra- and inter-agency variations in the enforcement styles of three regulatory inspectorates in Great Britain. It is argued that the accommodative approach typically associated with regulatory enforcement is not a homogeneous and uniform concept, rather it embraces a range of strategies. These are described and a variety of organisational, social and political factors are considered as explanations of the variations which arise.     

Medicolegal death investigator workplace safety hazards: A scoping review of the literature

In the United States, medicolegal death investigation practices and policies pertaining to sudden unexpected deaths are mandated by state government. Practices vary across states, which contributes to inconsistency in job prerequisites and training. In preparation for a study focused on occupational safety and health of medicolegal death investigators in their on-scene and follow-up activities, a scoping review was conducted to document known occupational safety risks and health-related conditions associated with death investigation. Searches used Boolean and subject heading operators both broad and narrow in scope, and search terms included scene responder, hazard, investigator, forensic pathology, injury, and safety. Twenty-five articles met inclusion criteria, which included seventeen survey-mixed method designs, two systematic reviews, five quasi-experimental designs, and one case study. Twelve articles addressed mental health and eleven focused on risks associated with infectious disease. One article addressed the risk of chemical exposure from cyanide among autopsy personnel (including forensic pathologists) and nine included a wide range of employees within the setting of medical examiner or coroner offices. One article, addressing burnout, included employees in a forensic science laboratory setting as well as medicolegal death investigators and two articles included forensic pathologists and medicolegal death investigators. Only one article addressed medicolegal death investigators specifically. Articles addressing occupational and environmental hazards of medicolegal death investigators associated with musculoskeletal, respiratory, cardiovascular, radiological, nuclear, electrical, or explosive threats were not identified. There is little published about safety risks inherent in conducting death investigations. Research is needed to adequately inform health promotion and injury prevention strategies.     

制定《上海市公共安全管理条例》的立法思考

积极借鉴国外城市公共安全管理法制与机制保障经验，制定《上海市公共安全管理条例》，是实现特大型城市公共安全常态管理法治化的必然趋势，并能促进创新型特大型城市公共安全危机管理法规体系的形成，建立健全权责明确的法治化公共安全管理体系，完善特大城市常态化公共安全管理执法机制。     

The regulatory pyramid meets the food pyramid: can regulatory theory improve controls on television food advertising to Australian children?

This article examines whether responsive regulation has potential to improve the regulatory framework which controls free-to-air television advertising to children, so that the regulatory scheme can be used more effectively as a tool for obesity prevention. It presents two apparently conflicting arguments, the first being that responsive regulation, particularly monitoring and enforcement measures, can be used to refine the regulation of children's food advertising. The second argument is that there are limits to the improvements that responsive regulation can achieve, since it is trying to achieve the wrong goal, namely placing controls on misleading or deceptive advertising techniques rather than diminishing the sheer volume of advertisements to which children are exposed. These two positions reflect a conflict between public health experts and governments regarding the role of industry in chronic disease prevention, as well as a broader debate about how best to regulate industry.     

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.     

美国联邦政府的煤矿安全生产监管制度研究

中美两国都是世界上最主的煤炭生产国和消费国.但是,两国的煤矿安全状况却存在较大差异.除了煤炭产业结构、技术水平和资源禀赋等因素之外,煤矿安全监管法治建设也是导致这一差异的重原因.美国煤矿安全生产立法经历多轮修订,不断纠正历次重大煤矿事故暴露出的监管缺陷,建立起独立高效的煤矿安全监管体系,完善煤矿安全监察和事故调查程序,优化了法律责任和执法机制.此外,煤矿安全监察员和煤矿从业人员的强制培训制度,也可以有效加强监管机构的监管能力和监管对象的合规水平.而美国矿山安全和健康委员会独立负责的行政复议,有效保障了对行政执法行为的纠错和对相对人的救济功能.这些经验值得中国参考借鉴.