Research Panels on Regulatory Governance

Montreal, Canada | May 29-June 1, 2008

At the 2008 meeting of the Law & Society Association in Montreal, PPR Director Cary Coglianese organized a series of research panels on regulatory governance.


Accountability and the Public-Private Divide

Accountability has always been a core concern for both democratic governance and research on regulation. But contemporary developments in regulatory governance -- such as the growing interest in more flexible or self-regulatory regimes -- make accountability concerns even more salient. At the same time, advances in information technology may promise some alternative ways of addressing both old and new concerns. This panel took a fresh look at accountability, presenting findings from empirical and theoretical research and raising important questions for the future of democratic governance and law and society research. The panel was sponsored by the CRN on Regulatory Governance.

Chair: Mark Suchman (University of Wisconsin)
Discussant: Jodi L. Short (University of California, Berkeley)
Reconfigured Selves in Self-Regulation
Caroline Bradley (University of Miami)

Digital Copyright Law-Making and the Future Development of E-Government
Chi-Shing Chen (National ChengChi University)

Side Effects: Accountability and the Treatment of HIV/AIDS
Carol A. Heimer (Northwestern U/American Bar Foundation), Wendy N. Espeland (Northwestern University)

Legal Loyalties: A Theory of Reporting Systems within Institutional Duties
Orly Lobel (University of San Diego)

Reason-Giving and Accountability
Glen Staszewski (Michigan State University)

Early Career Research in Regulation and Governance

This panel brought together early career researchers working in the broad field of regulation and governance and included the participation of editors of the journals Regulation & Governance and Law & Policy in discussing the papers.  The panel was sponsored by the CRN on Regulatory Governance.

Chair/Discussant: Errol Meidinger (State University of New York, Buffalo)
Regulatory Policy for Better Law?
Oliver Fueg (University of Exeter)

Inside the Mind of Corporate Misbehavior: Developing a Psychology of Corporate Regulation and Excuse Making
Katherine Hall (Australian National University)

Contracting for Better Places: Development Agreements in Strategic Urban Renewal Projects
Menno Van der Veen (Delft University of Technology)

General Deterrence in the Waste Disposal Industry in the Netherlands
Karin van Wingerde (Erasmus University Rotterdam)

Attitudinal Model Versus New Institutional Approach to Supreme Court Decision-Making: Israel and the U.S.
Keren Weinshall-Margel (Hebrew University)


Transnational Regulatory Responses to Environmental Problems

Global environmental problems present some the most pressing challenges for law today. What legal designs hold the most promise for addressing environmental problems while also balancing other important social and economic objectives? What can we learn about societies' legal systems, or about the international legal order writ large, from the empirical study of environmental regulation? This panel brought together new law and society analysis of cross-national and international legal responses to risks to human health and planetary survival. The panel was sponsored by the CRN on Regulatory Governance.

Chair/Discussant: Errol Meidinger (State University of New York, Buffalo)
The Missing Instrument: Dirty Input Limits
David Driesen (Syracuse University), Amy Sinden (Temple University)

Global Warming: Can We Regulate Our Way Out?
Fiona Haines (University of Melbourne)

Moving toward Stringency in Emissions Trading: The Problem of Slack Caps
Lesley K. McAllister (University of San Diego)

Civil Law, Common Law, and the Origins of Anglo-American Skepticism towards the Precautionary Principle
Noga Morag-Levine (Michigan State University)

Japan's Environmental Law Development in Globalization: A New Cleanup Law and Its Influence on Society
Hitoshi Ushijima (Chuo University)

Roundtable--Getting Published in the Field of Regulatory Governance

Regulatory governance has attained increasing prominence as a field of research within the law and society tradition, with a number of journals and academic press book series devoted to it. In this session, editors from the journals Law & Policy and Regulation & Governance, as well as editors from leading academic presses, discussed the prospects for publication in the field, with a particular focus on early career researchers.

Chair: Colin Scott (University College, Dublin)
Participants: John Berger (Cambridge University Press)
Cary Coglianese (University of Pennsylvania)
Tara Gorvine (Edward Elgar Publishing)
Charles Myers (Princeton University Press)

Bringing in Business: Responsive and Management-Based Approaches to Regulation

The field of regulatory governance has a long and distinguished tradition of empirical research on regulatory policymaking and the behavior of regulatory enforcement officials. If rulemaking and enforcement constitute the "law" side of the equation because they are government-centered, the "society" side of regulatory governance research is decidedly business-centered. This panel succeeded in "bringing in business" in two senses. First, it shared new empirical research on business responses to regulation and enforcement policies. Second, it presented new analysis of responsive and management-based regulation, tools that self-consciously seek to leverage the expertise and power of business in achieving regulatory objectives. This panel was sponsored by the CRN on Regulatory Governance.

Chair/Discussant: Fiona Haines (University of Melbourne)
Beyond Compliance: Why Businesses Go There -- and Why It Matters
Cary Coglianese (University of Pennsylvania)

Culture Eats Systems for Breakfast: On the Limitations of Management-Based Regulation
Neil A. Gunningham (Australian National University)

Testing Responsive Regulation in Regulatory Enforcement
Christine Parker (University of Melbourne), Vibeke Lehmann Nielsen (University of Aarhus)

On Private Regulatory Regimes: Seeking Relationships
Myriam Senn (Independent Researcher)

Coming Clean... And Cleaning Up? Examining the Effects of Self-Policing
Michael W. Toffel (Harvard University), Jodi L. Short (University of California, Berkeley)


Regulation and Markets: Untangling Relationships

Regulatory governance focuses centrally on the interaction between law, society, and business. This panel provided a focused exploration of interaction between law and market activity, featuring new research on various forms of financial and economic regulation. This panel was sponsored by the CRN on Regulatory Governance.

Chair/Discussant: Bruce Carruthers (Northwestern University)
A Tale of Two Trends: Risk-based and Principles-based Regulation in Comparative Financial Services Regulation
Mary G. Condon (York University)

Insurance Regulation
Ronen Perry (New York U/U of Haifa)

Litigating as Delay Tactic: Universal Service in France
Dorit Rubinstein Reiss (University of California, Hastings)

The Anti-Competitive Nature of Investment Management Regulation
Jeff Schwartz (California Western School of Law)

Author Meets Reader--"New Foundations of Cost-Benefit Analysis," by Matthew Adler and Eric Posner

Cost-benefit analysis (CBA) is widely used by regulators, but its normative foundations have been widely viewed as shaky. In New Foundations of Cost-Benefit Analysis, Matthew D. Adler and Eric. A. Posner reconfigure the justification for CBA. They argue for "weak welfarism," a normative view that includes overall well-being as one normatively significant factor, but also countenances other considerations, such as fair distribution, moral rights, and environmental protection. They see CBA as a rough and administrable proxy for overall well-being, rather than as a "superprocedure" that captures all of our normative concerns. Contrary to CBA's harsh critics, Adler and Posner argue that CBA, properly reconfigured, is indeed a tool that governmental bodies should use in evaluating regulation. They reject the claim that CBA runs afoul of the incommensurability of different goods; that CBA is indeterminate in many cases; that the monetary valuation of lifesaving, the environment, or other "priceless" goods is reprehensible; or that CBA has a deregulatory bias and benefits industry at the expense of the public. This panel brought together commentators to assess Adler & Posner's argument, as well as the role for cost-benefit analysis in regulatory governance.

Chair: Cary Coglianese (University of Pennsylvania)
Author: Matthew Adler (University of Pennsylvania)
Readers: David Driesen (Syracuse University)
Douglas Kysar (Cornell University)
Amy Sinden (Temple University)


Competition for Regulatory Authority in a Decentered World

An important development in contemporary transnational regulation is the emergence of multiple non-governmental or supra-governmental regulatory programs aimed at similar issues in the same or related fields. While there has been considerable study of individual regulatory programs in such arenas, relatively little scholarly attention has been given to the dynamics of inter-program interaction. Yet it is clear that individual regulatory programs and the fields in which they operate are shaped by inter-program competition, collaboration and other forms of strategic interaction. Some programs compete for authority, legitimacy, adherents, or market share. Others form alliances for various purposes, while yet others appear to ignore each other altogether. In some cases, rule-making processes or program content appear to diverge over time as proponents seek to differentiate their programs from their competitors' programs.  In other cases they converge, sometimes upward to more demanding standards, sometimes downward. This panel explored competition among transnational regulatory programs in several arenas, including sustainable forestry, corporate social responsibility, and others. It examined the theoretical, empirical and normative implications of inter-program dynamics for governance in these particular arenas and beyond.

Chair/Discussant: Julia Black (London School of Economics and Political Science)
The Governance Triangle: Regulatory Standards Institutions and the Shadow of the State
Kenneth W. Abbott (Arizona State University)

Competition and Cooperation in Supra-Governmental Regulatory Networks: Implications for Transnational Democracy,
Errol Meidinger (State University of New York, Buffalo)

Goodbye ISO? The International Organization for Standardization and Competition for Regulatory Authority in the Field of Corporate Social Responsibility,
Stepan Wood (York University)