36 Pages Posted: 13 Feb 2012

Date Written: 2010

Abstract

Deciding whether to regulate involves more than making a choice between complete freedom and total control. Individuals and businesses can be regulated but still retain considerable discretion – even to the point of selecting on their own the rules that apply to themselves. In this paper, we focus on this latter kind of regulation, specifically assessing self-regulation as well as what some have called meta-regulation. We begin by conceptually situating these options within a larger regulatory taxonomy, characterizing self-regulation by the unity between the regulator and the regulated entity and defining meta-regulation as those ways that outside regulators seek to induce regulated entities to develop their own self-regulatory responses. Both of these regulatory approaches afford significant discretion to the targets of regulation and as such they may not always seem appropriate, especially if businesses cannot be expected to use their discretion in ways that maximize the public’s overall welfare. To consider the effectiveness of these regulatory alternatives, we present two cases of self-regulation (Responsible Care and the Institute of Nuclear Power Operations) and two cases of meta-regulation (Toxic Use Reduction Act and 33/50). The available evidence on these and other cases indicates that self-regulation and meta-regulation can sometimes achieve regulatory goals, but that their effectiveness can depend upon other, non-regulatory incentives and external pressures that bear down upon businesses. We conclude by suggesting that meta-regulation and self-regulation may be most appropriate when the government lacks ready access to information about regulatory problems and their possible solutions, precisely the kinds of complex circumstances where more conventional forms of regulation face their greatest challenges.