Table of Contents

Comparative Law and Regulation

Comparative Law and Regulation

Understanding the Global Regulatory Process

Research Handbooks in Comparative Law series

Edited by Francesca Bignami and David Zaring

Governance by regulation – rules propounded and enforced by bureaucracies – is taking a growing share of the sum total of governance. Once thought to be an American phenomenon, it is now a central form of state action in every part of the world, including Europe, Latin America, and Asia, and it is at the core of much international lawmaking. In Comparative Law and Regulation, original contributions by leading scholars in the field focus both on the legal dimension of regulation and on how this dimension operates in those places that have turned to regulation to meet their obligations.

Chapter 15: Performance-based regulation: concepts and challenges

Cary Coglianese

Subjects: law - academic, comparative law, regulation and governance

Extract

Around the world, one of the most persistent and widespread complaints made about government regulation has been that it is too constraining. Often referred to pejoratively with the adjective “command-and-control,” regulation is frequently criticized as costly and unreasonable (e.g., Bardach and Kagan, 1982; Howard, 1994). Such objections are loudest when rules inflexibly require every regulated entity to take the same actions—or adopt the same technological fixes—even if under some circumstances, or for some entities, the required action or technology might be expensive, ineffectual, or even counterproductive. Those objecting to inflexible regulation believe that the better approach is to adopt performance-based regulation. Instead of telling businesses exactly what technologies they must use to address public problems, government should establish binding performance or outcome goals, leaving it up to regulated firms to figure out how to achieve the specified outcomes or level of performance. Such a performance-based approach to regulation has many adherents around the world. In the United States, both Republican and Democratic administrations have expressed a preference for the use of performance standards. For example, in 1993 President William Clinton directed federal regulatory agencies to try to “specify performance objectives, rather than specifying the behavior or manner of compliance that regulated entities must adopt.”

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