Reorienting Regulation: Pollution Enforcement in Industrializing Countries

This special issue aims to set a course for future inquiry on regulatory enforcement in industrializing countries. With examples from major countries including Brazil, China, and Indonesia, the articles develop four cross-cutting themes: (1) how enforcement and its institutional context vary geographically and temporally, (2) how enforcement is affected by deficiencies in regulatory capacity and autonomy, (3) how civil liability regimes interact with enforcement, and (4) the relationship between enforcement and regulatory instrument choice.     

The Role of Emotion in Land Regulation: An Empirical Study of Online Advocacy in Authoritarian Asia

Scholarly interest about online advocacy in authoritarian settings is rapidly growing. With one of Asia's most active social media, Vietnam offers a promising site to investigate how online advocates navigate around state censorship to influence regulatory decisionmaking. Much research about online advocacy focuses on rational discourse, and fails to ask why satire and ridicule can change regulatory outcomes when reasoned debate fails. This article considers two cases studies where online advocates changed regulatory outcomes in Vietnam. It investigates why the regulators were sensitive to moral censure in social media, and responded to appeals for solidarity, but were reluctant to engage in rational public deliberation. These findings reveal insights into how online advocacy can trigger emotional responses in officials that transform the regulatory environment. The article concludes that rather than constituting cognitive missteps, emotions are integral to government regulation in Vietnam.     

A Regulatory Analysis of International Climate Change Regulation

The political challenges impeding the negotiation of a comprehensive multilateral agreement on international climate change have received a great deal of attention. A question that has gone somewhat overlooked is what essential components an effective regulatory scheme to reduce greenhouse gas emissions should contain. The objective of this article is to examine the regulatory architecture of current international arrangements relating to global climate change regulation. A systematic analysis of the structure, substantive composition, and administrative characteristics of the UNFCCC and Kyoto Protocol is undertaken. The analytical standard against which the agreements are examined is whether current international regulatory arrangements satisfy the basic requirements of regulatory coherence. The analysis identifies how the present scheme consists of a complex institutional structure that lacks a substantive regulatory core. The implications of the absence of functional and effective mechanisms to govern greenhouse gas emission reductions are considered in relation to the principles of good regulatory design. This, in turn, provides useful insights into how a better regulatory scheme might be designed.     

Theorizing continuity and change in socialist regulation

How does regulation change in authoritarian polities that tightly control public discourse and social mobilization? Socio-legal theories assume that regulation changes through intersubjective dialogical exchanges that persuade regulators to alter how they perceive social problems and the appropriate regulatory responses. Although this framework captures regulatory change in transparent dialogical spaces, it misses much of the regulatory story in the opaque discursive processes that order authoritarian polities. This article turns to sociological institutional theory—a non-dialogical theory to understand regulatory change in Vietnam's authoritarian polity. It investigates how commercial regulation in Vietnam has responded to an emerging mixed-market economy, at the same time the state has suppressed public dialogical challenges to socialist ideology. It concludes that regulatory change occurs when regulators respond to economic and social crises and layer new ideational components onto old programmatic ideas, converting them to new uses.     

Geopolitics and the Regulation of Economic Life

The nation‐state should be a central unit of analysis for research into international and transnational regulation. Considering the research implications of this, we focus on the emergence stage of the regulatory process. We discuss how knowledge is contested in discussions between states over regulatory problems. We argue that a range of factors, not just a narrowly conceived national interest, influence their incentive to cooperate. Research is needed into whether regulatory problems at this level pose new or additional issues for states. Other stages of the regulatory process need to be similarly examined, likewise the interaction between the stages themselves.     

Transforming Land‐Taking Disputes in Socialist Asia: Engaging an Authoritarian State

Few studies have responded to the calls by sociolegal scholars to explore how disputes evolve. This article takes up the challenge by examining how intermediaries in socialist Asia resolve land‐taking disputes that are intractable for administrative appeals and courts. Exploring alternatives to state‐based dispute resolution is a pressing issue for conflicts that pit citizens against authoritarian regimes. Using in‐depth interviews, this article investigates how intermediaries such as retired state officials navigate in and around authoritarian regimes, flattening power asymmetries between citizens and land officials. This analysis draws from, links, and advances three literatures that examine dispute resolution in different ways: the sociolegal “naming, blaming, and claiming” literature examines the trajectory of disputes, regulatory studies use legitimacy expectations to analyze how disputants evaluate and prioritize competing regulatory frameworks, and the collective identity literature analyzes how communities respond to disputes. This article contributes to the literature by developing a theoretical framework that explains how intermediaries circumvent conceptual differences and transform disputes. The findings compel researchers to consider the use of intermediaries as an alternative to state‐sponsored dispute resolution in authoritarian settings.     

Performing Regulation: Transcending Regulatory Ritualism in HIV Clinics

Sociolegal scholars suggest that regulatory encounters often are occasions for displaying a surface compliance decoupled from day‐to‐day practice. Yet ethnographic data from five highly regulated HIV clinics show that regulatory encounters open opportunities both for ritualism and—surprisingly—for transcending ritualism. Using a theatrical analogy, we argue that improv performance is the technology that enables regulatory inspectors and clinic staff to transcend ritualism. As regulatory encounters unfold, clinics' carefully prepared performances sometimes change into more cooperative interactions where inspectors and regulatees hash out details about how rules will be applied and even work together on reports for the regulators' supervisors. By “performing together,” regulatory inspectors gain access to the clinic's backstage where they can assess clinic workers' deeper conformity to ethical and scientific norms. But such joint performances are less likely where cultural divides and material scarcity make it difficult for clinic staff to gain inspectors' trust.     

Limits on Violence; Limits on Responsive Regulatory Theory

Responsive regulation is a general theory of how to steer the flow of events. This article seeks to understand when violence is and is not defensible as an enforcement escalation. It specifies limits on the claim of responsive regulatory theory that a tough enforcement peak to a regulatory pyramid helps drive regulation down to persuasion at the base of the pyramid. Those limits are about the counterproductive effects of violence at the peak of an enforcement pyramid. Erica Chenoweth and her colleagues show that nonviolent civilian resistance to regimes is twice as likely as armed struggle to succeed. Nonviolence complemented by a violent radical flank is less effective than disciplined nonviolence. This refutes the “benign big gun” aspect of responsive regulatory theory as a general theory of the regulation of social action. The theory implies that capacity to escalate to armed struggle at the peak of a regulatory pyramid should empower resistance. Can responsive theory be adapted to this empirical challenge? Can that adaptation show a productive path to an ethics of when to constrain escalation to violence as an option at the peak of all kinds of regulatory pyramids? Lessons are drawn from how Nelson Mandela's struggle against apartheid opened nonviolent paths to transformation without total renunciation of violence.     

Regulatory Categorization and Arbitrage: How Daily Fantasy Sports Companies Navigated Regulatory Categories Before and After Legalized Gambling

This article uses the context of daily fantasy sports (DFS) to analyze how companies use strategic categorization in regulatory arbitrage. Recent actions by two leaders in the DFS industry, DraftKings and FanDuel, provide an ideal context to study this issue. DraftKings and FanDuel categorized themselves differently to different audiences at different times in a manner that evaded categorization as an illegal gambling activity, only to then dominate the sports betting market after the Supreme Court's decision in Murphy v. NCAA. We examine how this type of strategic categorization, which we call “fluid categorization,” raises important questions for regulators and others concerned with regulatory arbitrage. We also explore how fluid categorization provides lessons for other businesses. While this article has broad implications for the sports gambling marketplace, it also contributes to meaningful discourse for the broader business community, as its findings are relevant to industries beyond DFS that offer gray market products and seek to fight categorical labels until there is a reclassification event.     

Regulatory Domain and Regulatory Dexterity: Critiquing the UK Governance of ‘Fracking’

This article provides a critique of the UK government's regulatory response to ‘fracking’. It shows how government has adopted two distinct schemas of regulation, which may usefully be classified under the headings ‘regulatory domain’ and ‘regulatory dexterity’. These schemas rely on very different interpretive conventions and are in many ways contradictory. Yet, government uses both ‘domain’ and ‘dexterity’ arguments simultaneously in order to advance its policy in favour of fracking. The article explains how two seemingly different regulatory approaches work together towards the same policy goal, and highlights the role of law in facilitating technological development.     

What “Regulatory State”? Explaining the Stability of Public Spending and Redistribution Functions after Regulatory Reforms of Electricity and Rail Services in the United Kingdom and Germany

In Europe, the rise of the regulatory state was accompanied by a broad diffusion of research on the processes of privatisation, liberalisation, and reregulation of utilities, previously managed directly by the state. This article offers an empirical and theoretical discussion of the paradigm of the regulatory state. It proposes to evaluate the transformation of the actual functions of the welfare state in a context of reforms of network industries over the last twenty years. Relying on cases from the electricity and railways sectors, it studies the changing balance between the traditional functions of the welfare state and the new regulatory functions introduced by the reforms. This article explains how, alongside the strengthening of regulatory functions, states maintained and developed powerful redistribution functions. The emerging regulatory state is not substituted for the positive/welfare state, but partly juxtaposed with it, making the structures for governing these sectors much less easy to read.     

Signaling Environmental Stewardship in the Shadow of Weak Governance: The Global Diffusion of ISO 14001

This article examines how the quality of domestic regulatory institutions shapes the role of global economic networks in the cross‐national diffusion of private or voluntary programs embodying environmental norms and practices. We focus on ISO (International Organization for Standardization) 14001, the most widely adopted voluntary environmental program in the world, which encourages participating firms to adopt environmental stewardship policies beyond the requirement of extant laws. We hypothesize that firms are motivated to signal environmental stewardship via ISO 14001 certification to foreign customers and investors that have embraced this voluntary program, but only when these firms operate in countries with poor regulatory governance. Using a panel of 129 countries from 1997 to 2009, we find that bilateral export and bilateral investment pressures motivate firms to join ISO 14001 only when firms are located in countries with poor regulatory governance, as reflected in corruption levels. Thus, our article highlights how voluntary programs or private law operates in the shadow of public regulation, because the quality of public regulation shapes firms' incentives to join such programs.     

Regulatory Styles,Motivational Postures and Nursing Home Compliance*

Using Kagan and Scholz (1984) typology of regulatory noncompliance, this study examined the perceptions of regulators and of regulatees toward the regulatory encounter to predict subsequent compliance with nursing home quality of care standards. Appraisals of both regulators and regulatees were not driven by motivational analyses of each other's actions, but rather by assessments of performance and social group identity. The regulators saw nursing homes in terms of one evaluative dimension ranging from responsible and not in need of intervention through to irresponsible and needing intervention. The corresponding reactions of nursing home managers involved seeing the regulators as cooperative and sympathetic through to police-like and coercive. On both sides of the regulatory encounter, criticism and reactions to criticism swamped nuanced analyses of motivational underpinnings and rational decision models in explaining compliance. The motivational complexity underlying the Kagan and Scholz typology was, however, apparent in the self-reported motivational postures of managers toward the regulatory process. The postures of managerial accommodation and capture to the regulatory culture were associated with compliance. Over time, resisters to the new regulatory regime became more compliant, particularly those whom inspectors judged as best left alone to adjust. In contrast were managers whose response to the regulatory process was disengagement. Their organizations experienced deterioration in compliance. The study fails to find that certain kinds of regulatory strategies such as deterrence, education and persuasion work better than others across the sample or with specific groups. Extant models focus excessively on how to play the regulatory game without recognizing the potential for players dropping out of the game. Understanding reasons for disengagement and processes for reengagement are fundamental to the application of behavioral decision theory models to the regulatory context.     

Regulatory Conversations

The article proposes a new site of analysis for the study of regulation: regulatory conversations, and a new theoretical approach: discourse analysis. Regulatory conversations, the communicative interactions that occur between all involved in the regulatory 'space', are an important part of most regulatory systems. Discourse analysis, the study of the use of language and communication, suggests that such interactions are constitutive of the regulatory process, that they serve important functions, that they can be the basis of co-ordinated action, and that they are important sites of conflict and contestation. The article explores five key contentions of discourse analysis, considering how each may shed light on aspects of regulatory processes. These are, first as to the meaning of language and co-ordination of social practices; second, as to the construction of identities; third, the relationship of language, thought, and knowledge; fourth, the relationship of language and power, and finally, that meaning, thought, knowledge, and power are open to contestation and change.     

Taking crime out of crime business

It is one thing to assert that conventional market analysis is critically useful in understanding criminal enterprise. It is more challenging to suggest that corrupt and compromised legal regulation interacts with other critical market variables to maximise market advantage for crime business in a similar manner to legitimate regulatory forces in their protection and enhancement of legitimate business enterprise. The central argument of this paper is that crime business mirrors other business forms when considered in terms of critical market variables, and that in particular regulatory forces when inverted from their original purposes can influence market conditions in the same ways desired from the legitimate regulatory form. The main research direction deriving from the analysis of regulatory influences over specific criminal enterprises is how do certain critical market forces essentially facilitate criminal enterprise as a market phenomenon. This paper suggests how through comparatively analysing nominated critical market forces in the context of lucrative and recurrent criminal enterprises, common business decision-making may be predicted and thereby controlled beyond a law enforcement paradigm. In fact, the paper argues that when perverted law enforcement regulation operates as an inter-connecting market characteristic then it can have a similar influence over illegitimate enterprise that law enforcement may provide legitimate business.By establishing a richer and more enterprise-oriented understanding of crucial market variables, it becomes possible to refine control strategies at critical entry and exit points in the operation of clandestine crime businesses. The paper will challenge a comparative theorising of what makes crime business a good business, and how normative distinctions between illegitimate markets are made less convincing when positioned against an analysis of the interaction of critical market variables.     

Understanding the New Regulatory Governance: Business Perspectives

This article considers business understandings of two of the principal features of the new regulatory governance. First, it focus on attempts to place greater responsibility for risk regulation on business and asks how well equipped they are to manage this. Second, it examines the decentering of the state and considers how business organizations view the influence of nonstate actors on their business regulation. These issues are discussed with reference to data from two different research projects in the United Kingdom. The findings question the implicit assumptions the new regulatory governance makes about how well equipped businesses are to manage the risks they generate and how able nonstate influences are to influence the full range of businesses.     

Rule‐Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements

The boundaries between public and private actors are increasingly blurred via regulatory governance arrangements and the contracting out of rights enforcement to private organizations. Regulation and governance scholars have not gained enough empirical leverage on how state actors, private organizations, and civil society groups influence the meaning of legal rules in regulatory governance arrangements that they participate in. Drawing from participant observation at consumer law conferences and interviews with stakeholders, my empirical data suggest that consumer rights and, in fact, consumer law, mean different things to different stakeholders tasked with adjudicating consumer rights. Rights afforded consumers who purchase warranties are now largely contingent on first using alternative dispute resolution structures, some created and operated by private organizations with soft state oversight and others run by stakeholders but with greater state oversight and involvement. Using new institutional sociology and regulatory governance theories, I find that stakeholders involved in overseeing and administering these dispute resolution systems filter the meaning of consumer rights through competing business and consumer logics. Because consumer laws mean different things to stakeholders tasked with adjudicating consumer rights, two different rights regimes simultaneously exist in this field. I conclude that how rule‐intermediaries administering private and state‐run dispute resolution systems conceptualize what consumer laws mean in action may have implications for regulatory governance and more broadly, consumers' access to justice.     

Law clinics in England and Wales: a regulatory black hole

There has been very limited consideration to date of how the regulatory environment in England and Wales impacts on university law clinics and the solicitors who run them. This paper sets out the current regulatory framework pertaining to university law clinics and explains the restrictions and limitations it poses. It highlights the current failure on the part of the regulators to meet their statutory duty to promote access to justice in relation to university pro bono services and sets out a series of recommendations as to how clinicians and regulators can secure a more certain and enabling future for clinics.     

Analyzing regulatory failure: mismatches, less restrictive alternatives, and reform

Professor Breyer presents here a framework for analysis and reform of economic regulation. The framework consists of three basic elements: justifications for regulation, modes of classical regulation and the problems they entail, and "less restrictive alternatives" to regulation, including taxation and disclosure. Using contemporary regulatory programs as examples, Professor Breyer argues that many such programs are ill designed to meet their objectives, and that the problems inherent in such regulatory regimes are severe. Finally, he briefly sketches how one might, as a practical matter, go about achieving reform, citing as an example the recent change in airline regulation.