Professor Bainbridge...on law, politics, religion, culture & food

Principles-based Regulation

Bruce Carruthers:

Buried within the U.S. Treasury Department’s just-released blueprint for a new financial regulatory structure is a proposal for a new approach to regulation. The report calls the regulatory status quo an “institutionally based functional system,” and as a long-term goal seeks to replace this with “objectives-based regulation.” In fact, OBR is celebrated in the document as the optimal regulatory structure. Strong words indeed. I’ll resist the temptation to dismiss this as recycling “management-by-objectives” for the public sector. Instead, it is useful to regard OBR as one of a new set of approaches to economic regulation, all of which stem from criticism of “old-fashioned” command-and-control regulation. These new approaches include “principles-based” regulation and “performance-based” regulation. Whatever their faddish qualities, the problem they respond to is real. When regulation is done by promulgating detailed rules (that explain what the regulated shall and shall not do, and how), and then enforcing compliance with those rules, two problems arise. First, the regulated activity or industry typically evolves faster than the governing rules, and so the latter become increasingly irrelevant. In fact, escaping the grasp of static regulations becomes a big incentive to innovate. Regulators trying to keep up will usually add more rules, spelled out in excruciatingly greater detail, until the ungainly corpus of rules looks like, like, well, … the IRS code. Second, compliance increasingly becomes formal compliance with the strict letter of the law, even when such compliance violates the spirit of the law. It encourages a “check list” mentality that focuses solely on the literal meaning of the rules. OBR, and the other alternatives, try to avoid such difficulties by recasting regulation so that it focuses on a desired outcome or objective, and then grants a measure of flexibility to the regulator to steer towards that goal in whatever way seems best. Flexible regulations make sense if the behavior, market or industry that is to be regulated is dynamic, innovative, or highly variable.

Is OBR truly optimal? Who knows?

Who indeed? It is the question du jour.