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.     

论经济管制立法的域外适用——兼评我国《反垄断法》第2条

随着国际民商事交往的扩大,国际私法的调整范围突破了传统的民事关系,开始调整具有"准公法"性质的国际经济关系。基于对一国经济立法的公法性质的分析,进一步剖析了各国经济立法域外适用的各种理论,并结合我国《反垄断法》第2条的规定,指出我国反垄断法有关域外适用原则的缺陷,进而提出完善的建议。     

From rule-taker to rule-promoting regulatory state: South Korea in the nearly-global competition regime

When rapid economic growth catapults a country within a few years from the margins of the global economy to middle power status, does global regulatory governance need to brace for a challenge to the status quo? To answer this question, we extend the power transition theory of global economic governance to middle powers: A rising middle power should be expected to challenge the international regulatory status quo only if increasing issue-specific strength of its regulatory state coincides with preferences that diverge from the preferences of the established powers, which are enshrined in the status quo. We examine this argument empirically, focusing on South Korea in the realm of competition law and policy. We find that South Korea, a non-participant in the international competition regime until the 1980s, developed in the 1990s substantial regulatory capacity and capability and thus “spoiler potential.” At the same time, however, its policy preferences converged upon the norms and practices established by the United States and the European Union, albeit with some distinct elements. Under these conditions, we expect a transition from rule-taker to rule-promoter. We find that South Korea has indeed in recent years begun to actively promote well-established competition law and policy norms and practices – supplemented by its distinct elements – through technical assistance programs, as well as various bilateral channels and multilateral institutions. The findings suggest that the power transition theory of global economic governance is usefully applicable to middle powers, too.     

Regulatory disempowerment: How enabling and controlling forms of power obstruct citizen-based regulation

Regulatory studies assume that citizens can act as regulators to complement or correct failing state and market forms of regulation. Yet, there is a growing literature that shows that in reality citizens may fail to be effective regulators. This paper systematically analyses how power inequalities obstruct citizens in their regulatory roles. It compares four case studies with highly different social and political contexts but with similar outcomes of citizens failing to regulate risk. The case studies are analyzed by operationalizing sociological and political science ideas about manifestations of enabling and controlling forms of power in order to understand the way power inequalities obstruct citizens in their regulatory roles across diverse contexts. The article shows how citizens, from farmers and manual workers in both authoritarian developing and democratic developed contexts to even highly trained medical professionals from the US, have limited agency and are disempowered to act as regulators. Our analysis reveals that five patterns of disempowerment play a crucial role in obstructing successful society-based regulation: (i) dependency, (ii) capacity, (iii) social hierarchy, (iv) discursive framing, and (v) perverse effects of legal rights.     

Regulatory enforcement against organizational insiders: Interactions in the pursuit of individual accountability

The UK Financial Conduct Authority has developed and implemented policies targeting individuals for regulatory non-compliance in the post-2008 crisis period. This article develops a tripartite framework that differentiates between individual–firm, regulator–individual, and regulator–firm interactions to capture the complexity of these enforcement proceedings. Drawing on interviews with stakeholders, administrative decisionmaking observations, and documentary analysis, it outlines the process of individualizing responsibility for non-compliance and finds that this approach poses evidential and investigative challenges for the regulator as a result of individual and corporate responses. The evidence shows that individuals are more likely than firms to engage in an adversarial response to an investigation rather than to settle. At the same time, through an inverse process of “corporatization” of the enforcement proceedings, firms may employ resources and strategies aimed at obscuring individual responsibility or binding together more closely the corporate and the individual case. The article concludes that the prospects of a successful outcome in investigating individuals depend not only on regulators' activities but also on corporate responses and on which managers are considered assets to the firm and which may be thrown to the wolves.     

Meet the critics: Analyzing the EU Commission's Regulatory Scrutiny Board through quantitative text analysis

As part of the “better regulation” agenda, the European Commission created a semi-independent institution, the Regulatory Scrutiny Board, to monitor the preparation of policy proposals. The position of this Board is potentially wide-ranging. A proposal that is not given the green light by it cannot proceed in the Commission's internal decisionmaking process. But so far, the Board has only received scant scholarly attention. We provide a comprehensive analysis of the impact of the Regulatory Scrutiny Board on the Commission's policy preparation. Using machine learning techniques and quantitative text analysis, we study 673 Board opinions and compare almost 100 draft and final policy proposals. Our findings show that the Board is an active watchdog that is taken seriously by the Commission's departments. A full understanding of policy preparation in the EU therefore requires more scholarly attention to the Regulatory Scrutiny Board.     

经合组织的规制改革政策及其对我国的启示

规制改革是经合组织国家政府改革的重要组成部分。本通过对经合组织规制改革献的研究，介绍了经合组织对政府规制概念的界定和分类、对规制改革的理解和推动改革的政策建议，并分析了对我国政府改革的借鉴性意义。     

波斯纳的比较管理优势说——兼论冲突法与自由贸易

针对私法冲突,波斯纳(Richard A.Posner)提出了“比较管理优势说”(Comparative Regulatory Advan-tage Theory),分析一州在某类案件上的管理优势,主张适用符合比较管理优势标准的冲突法规范解决法律冲突。比较管理优势说以州为中心,运用法经济学方法分析了州际私法冲突,主张通过州与州间的合作实现冲突法效率的最大化。但该理论亦存在很多的缺陷与不足。以比较管理优势说为起点,运用贸易理论上的绝对优势与相对优势模型,结合法院地法主义与适当的适用外国法的理念,我们可以看出冲突法在法律适用上应追求“自由贸易”。     

EU Regulation of Medical Devices and Pharmaceuticals in Comparative Perspective

This paper provides a comparison of European Union regulatory policy for pharmaceuticals and medical devices. The discussion highlights key similarities and differences in regulatory approach for the two sectors. More importantly, it explores the balance that has been struck between public health, health care, and industrial policy as “competing” objectives within the respective regulatory regimes. It is argued that, despite both sectors being affected by the same institutional rules and constraints at the EU level, and both being central to the delivery of high-quality health care in Europe, there are a surprising number of differences between the regulatory frameworks. That this stems in part from their different “launch” times, hence different institutional conditions of regulation, and commensurate political climates, as well as reflecting different aims and goals among member-state and EU-level policy makers, are among the paper's main conclusions.     

抵御外来物种入侵:我国立法模式的合理选择——基于国际社会与外国法律规制模式的比较分析

通过法律规制外来物种入侵是各国防治外来物种入侵采取的重要手段之一。目前国际社会倡导和各国立法主要确立了“法律+国家防治战略”的法律规制模式,既包括确立预防、早期监测和快速反应、控制管理评估等基本的法律制度,也包括以国家防治战略形式体现的灵活性对策措施。此外各国还建立了对外来物种入侵实施统一管理的行政体制。我国应当借鉴国外通过法律规制外来物种入侵的成功经验,尽快制定外来物种入侵防治法律并构建统一的防治外来物种入侵的管理体制。