Why are regulatory approaches so inconsistent? Studies in psychology confirm an inconvenient truth: people tend to reject and reject information that contradicts their own beliefs.3939.See generally Albert H. Hastorf & Hadley Cantril, They Saw a Game: A Case Study, 49 J. Abnormal & Social Psyc. 129 (1954); Hugo Mercier & Dan Sperber, Why Do Humans Reason? Arguments for an argumentative theory, 34 Behav. 57 (2011); Raymond S. Nickerson, Confirmation Bias: A Ubiquitous Phenomenon in Many Guises, 2 Rev. of Gen. Psych. 175 (1998). In particular, people with strong opinions are likely to evaluate biased facts and empirical evidence.4040.See generally Charles G. Lord, Lee Ross & Mark R.
Lepper, Bias Assimilation and Attitude Polarisization: The Effects of Prior Theories on Later Considered Evidence, 37 J. Personality & Soc. Psych. 2098 (1979). This well-documented trend has profound implications for communication and political polarization.4141.See in general James Andreoni & Tymofiy Mylovanov, Didiverging Opinions, 4(1) Am. Econ. J.: Microeon. 209 (2012); Roland Bénabou & Jean Tirole, Self-confidence and personal motivation, 117 Q. J. Econ. 871 (2002); Avinash K. Dixit & Jörgen W.
Weibull, Political Polarisization, 104 Proc. nat`l Acad. Sci. 7351 (2007); Barak Orbach, On Hybris, Civility, and Incivility, 54 Ariz. L. Rev. 443 (2012); Barak Orbach and Frances R. Sjoberg, Excess Speech, Civility Norms, and the Clucking Theorem, 44 Conn. L. Rev. 1 (2011); Rajiv Sethi & Muhamet Yildiz, Public Disagree, 4(3) Am.
Econ. J.: Microeon. 57 (2012). This human trend also explains the general perception of regulation and approaches to specific regulatory measures. Regulatory measures, which are legal instruments that can interfere with decisions, are always incompatible with the beliefs of some people. But, as Justice Holmes pointed out, “just about every law forbids men from doing certain things they want to do.” 4242.Adkins v. Children`s Hosp. of D.C., 261 U.S. 525, 568 (1923) (Holmes, J., different).
Barak Orbach is a professor of law at the University of Arizona School of Law. www.orbach.org. This article is part of a larger regulatory project that includes several articles and a casebook, Regulation: Why and how the State Regulate (Foundation Press, 2012). Another common notion of “regulation,” or at least a popular reference to regulation, equates the concept with laws that serve interest groups.1616.See also Barak Orbach, Invisible Lawmaking, 79 Uni. Chi. L. Rev. Dialogues 1 (2012). Economist George Stigler popularized this view, stating that “regulation is acquired by industry and designed and operated primarily to its advantage.” 1717.George J. Stigler, The Theory of Economic Regulation, 2 Bell J. Econ.
& Mgm`t Sci. 3, 3 (1971); see also Gabriel Kolko, The Triumph of Conservatism: A Reinterpretation of American History, 1900-1916 3 (1963) (reviewing the establishment of the Interstate Commerce Commission and its early years and concluding that “regulation itself was invariably controlled by the leaders of the regulated industry and directed towards objectives they considered acceptable or desirable”); Sam Pelzman, Towards a More General Theory of Regulation, 19 J. L. & Econ. 211 (1976). Richard Posner offered a refined version of this perception: “Regulation [is] a product assigned in accordance with the basic principles of supply and demand. [and] we can expect a product to be delivered to those who value it most. 1818.Richard A. Posner, Theories of Economic Regulation, 5 Bell J.
Econ. & Mgm`t Sci. 335, 344 (1974). Over the years, Justice Richard Posner`s view of regulation has evolved and changed. See, for example, Richard A. Posner, The Crisis of Capitalist Democracy 1-2 (2010) (“(c)apitalism is not synonymous with free markets. It is a name given to a complex economic system with many moving parts. (Some of these parts) include a system of laws to protect property and facilitate transactions, institutions to enforce these laws, and regulations to balance private incentives with the goal of overall prosperity. Posner, op.
cit. cit., note 16, p. 16. 12 (“From a normative economic point of view, the purpose of regulation, whether by the courts or by agencies, is to solve economic problems whose solution cannot be left to the market.”). 1919.Preventing Capture: Special Interest Influence in Regulation and How to Limit It (Daniel Carpenter & David Moss eds., 2012). Even if the regulator is co-opted by the industry, it is far from clear that a lack of regulation would be better for the public.2020.See, for example, Robert W. Harbeson, Railroads and Regulation, 1877-1916: Conspiracy or Public Interest?, 27 J. Econ. Hist. 230 (1967).
Lawyers often use the word “regulation” in reference to the regulations of administrative authorities. This habit follows executive terminology.1313. Daniel defines what is often referred to as “regulation.” For example, Executive Order 12.866, which requires federal agencies to conduct a cost-benefit analysis when “deciding whether and how to regulate,” defines “regulation” as “a statement by the agency of general applicability and future impact that the agency intends to have the force and effect of a law intended to implement laws or directives. interpret, prescribe or describe the procedural or practical requirements of a public authority”. 1414.Executive Order No. 12.866 § 3(d), 3 C.F.R. 638 (1993), as amended by Executive Order No. 13,258, 3 C.F.R. § 204 (2003) and Executive Order No. 13,422, 3 C.F.R.
191 (2007), reprinted as amended in 5 U.S.C. § 601 (2006), repealed by Executive Decision No. 13.497, 3 C.F.R. 218 (2010). Executive Order 12.866 replaced Executive Order 12.291, which President Reagan issued in February 1981 and contained the same definition. This meaning reflects another common interpretation of the term “regulation”, but certainly does not cover the full range of regulatory instruments. Much of our regulatory landscape does not come from administrative authorities.1515.For example, the law adopted by the courts – the common law – is a traditional form of regulation. See Andrew P. Morrisss et al., Regulation by Litigation (2008); Regulation Through Litigation (W.
Kip Viscusi, ed., 2002); Richard A. Posner, Regulation (Agencies) versus Litigation (Courts): An Analytical Framework, in Regulation vs. Litigation 11 (Daniel P. Kessler ed., 2010); see also Freedom Holdings, Inc. v. Spitzer, 358 F.3d 205 (2d Cir. 2004); Sanders v. Braun, 504 F.3d 904 (9. cir. 2007); The T.J.
Hooper v. Northern Barge, 60 F.2d 737 (2d Cir. 1932). Of course, there is some truth in most perceptions of regulation. Regulation can be used to require or prohibit conduct; it may take the form of administrative arrangements; it can serve stakeholders; and it can generate waste.4343.See for example Oliver Wendell Holmes, The Path of the Law, 10 Harv. 457, 458 (1897) (“(A) the legal obligation thus called is nothing more than a prediction that if a man does or refrains from doing certain things, he must suffer by judgment of the court in one way or another; — and therefore legal action. »). However, like Mill`s complex products, most things that have “useful purposes” can become “toxic” if misused. Maintaining or expressing a one-dimensional perception of regulation is too simple a way of looking at or representing the world. In politics, science and everyday life, this approach is still quite common and toxic in itself. Managing authorities implement legislation in various ways, including the adoption of rules to implement what the Agency considers to be a legislative intent. Organizations typically develop regulatory proposals and then initiate rule-making procedures in which interested parties can testify and comment on them.
The agency then issues a rule or guideline that binds the agency in future cases in the same way as legal law. A few examples of the confusion between the perception of regulation and the understanding of the concept as government intervention may be helpful. Lawmakers and courts have long sought to implement this seemingly simple regulatory approach. It wasn`t until 1906, after decades of debate, that Congress passed the Pure Food Act, which prohibits the manufacture and sale of “any adulterated or mislabeled food or drug.” 2727.See James Harvey Young, Pure Food: Securing the Federal Food and Drugs Act of 1906 (1989); Peter Temin, The Origin of Mandatory Drug Prescriptions, 22.
