Doing,Allowing, and the State

The doing/allowing distinction plays an important role in our thinking about a number of legal issues, such as the need for criminal process protections, prohibitions on torture, the permissibility of the death penalty and so on. These are areas where, at least initially, there seem to be distinctions between harms that the state inflicts and harms that it merely allows. In this paper I will argue for the importance of the doing/allowing distinction as applied to state action. Sunstein, Holmes, Vermeule and others have presented influential arguments for the claim that where the state is concerned the doing/allowing distinction has no moral significance, even if it does elsewhere. I show that these arguments can be resisted. In doing so, I defend some important distinctions and principles that help us understand the state’s role in protecting people from harm.     

The impact of consumer advocates on regulatory policy in the electric utility sector

We examine the effect of consumer advocate participation in administrative procedures on regulatory policy. We use a unique panel database of rate reviews conducted for US electric utilities from 1980 to 2007 to assess how state consumer advocates affect Public Utility Commission decisions on utilities’ allowed financial returns and rate structures. We find first that utilities experience fewer rate reviews in states with consumer advocates, consistent with utilities strategically postponing requests for rate increases. Second, after controlling for observed and unobserved state characteristics, we find that PUCs in states with consumer advocates permit returns on equity that are on average 0.45 percentage points lower than states without advocates—equivalent to a $7.9 million (3.7 %) reduction in average utility operating income, all else equal. Third, consumer advocates are associated with lower residential rates relative to other customer classes. Our findings provide statistical support for the thesis that institutionalizing interest group representation in administrative procedures is one way for legislatures indirectly to influence agency-determined policies.     

Risk Management and Risk Avoidance in Agency Decision Making

Despite decades of efforts to enhance the public's role in bureaucratic decision making, citizens still tend to have little influence on the decisions that public managers make. Solutions often focus on the processes or structures of participation, but such changes may be of limited effectiveness if the structure is only part of the problem. Although much research has argued the normative justification for including the public, noting that frameworks that do not encourage genuine participation may diminish rather than enhance public influence, there has been less focus on how participants’ divergent frames of reference may also diminish the influence of public input. This research explores this gap from a risk management perspective, suggesting that public managers tend to view risk as something to be managed, whereas citizens tend to view risk as best avoided.     

Awareness of Corruption in the Community and Public Service: a Victorian Study

Corruption hurts the public and undermines government. This study of perceptions of corruption in Victoria shows that the community believes corruption is on the increase, yet this view is not shared by public servants. In general corruption is not on the radar of senior Victorian public servants. There are more perceptions of corruption in line agencies than in central agencies. Behaviours most commonly suspected and observed were hiring family and friends, conflict of interest, abuse of discretion and abuse of information. One‐ third of public servants surveyed thought there were opportunities for bribery, yet only 4% had suspected bribery and less than one per cent had personally observed it. Almost half do not believe they would be protected from victimisation should they report corruption. The data reported here poses challenges in thinking about corruption when devising integrity standards in the public service.     

Cheap Hawks, Cheap Doves, and the Pursuit of Strategy

The post-9/11 threats to American security require a complete revision of American national strategy. For too long, presidents have had to favor quick, cheap solutions to crises, unable to count on support from the “homebody” public for long, drawn-out conflicts. “Cheap hawks” among them have hoped that apocalyptic rhetoric will suffice when resources fall short; “cheap doves” hope that by ignoring the threat, it will go away. But with the war on terror, the revival of geopolitics, and ever-accelerating globalization, the U.S. tradition of bellicose rhetoric backed by underwhelming force is a recipe for failure. To effectively manage its threats, America needs a new catechism and to make sure its economic, energy, and military policies support this.     

Children,COVID, and confusion: How frontline workers cope with the challenges of vaccine mandates

With the emergence of COVID-19, many governments around the world co-oped non-health actors into enforcing comprehensive mandatory vaccination policies. Implementing these policies can be challenging, creating irreconcilable goals and problems with knowledge and understanding of areas outside the implementers’ direct field of expertise or scope of work. We know very little about how such frontline workers cope with these challenges associated with implementing policies whose goals lie well outside their remit (which we describe as generating exogenous policy pressures), and what this means for the operation of the policies. This article uses policies in place prior to the pandemic to fill this gap. It examines attitudes and experiences of frontline childcare educators who implement Australia's No Jab, No Play childhood vaccine mandate policies within the states of New South Wales, Queensland, and Victoria. Through qualitative analysis of interview and focus group data, we find that these frontline workers cope with moral conflict, confusion, and a lack of knowledge by moving against clients: they rigidly follow the rules beyond legislative requirements, and sometimes break them, generating a new coping category we call ‘rigid rule breaking’. However, their need to employ coping strategies is informed by the extent to which government has designed the policy to coerce the behaviour of the providers, families, or both. The implementation of more coercive variants of No Jab, No Play policies deviates more from what legislators intended, while providers given scope to make their own decisions about enrolling unvaccinated children report satisfaction in their decision-making.

Points for practitioners

• Australian state mandatory vaccination policies generally require childcare providers to exclude unvaccinated children.
• Street level bureaucrats face pressures when implementing coercive policies exogenous to their remit.
• They may simplify policy implementation in ways that counter governments’ goals.
• Actors given more discretion about passing on coercion to policy targets demonstrate better understanding and ownership of policies.

     

Prescribing engagement in environmental risk assessment for gene drive technology

Gene drive technology is a nascent biotechnology with the potential to purposefully alter or eliminate a species. There have been broad calls for engagement to inform gene drive governance. Over the past seven years, the gene drive community has been developing risk assessment guidelines to determine what form future gene drive risk assessments take, including whether and how they involve engagement. To explore who is developing these guidelines and how engagement in risk assessment is being prescribed, we conduct a document analysis of gene drive risk assessment guideline documents from 2014 to 2020. We found that a narrow set of organizations have developed 10 key guideline documents and that with only one exception the documents prescribe a narrow, vague, or completely absent role for engagement in gene drive risk assessment. Without substantively prescribed engagement in guidelines, the relevance, rigor, and trustworthiness of gene drive risk assessment and governance will suffer.