The Shadows of the Law: Contemporary Approaches to Regulation and the Problem of Regulatory Conflict

Abstract

Regulatory analyses often assume that compliance is desirable, with literature focusing on strategies to encourage “excellence” in adherence to regulatory goals. Yet, it is not unusual for disparate regulatory goals to exist that are based on competing values of what constitutes the “good society.” It is this conflict that forms the substance of this paper. In cases of competing regulatory goals, techniques that encourage exemplary compliance in one area can create incentives to breach regulatory provisions of a competing regime. In such cases, generic regulatory techniques are unable to provide a useful means for resolving regulatory conflict but do allow a political delegation of conflict resolution to the “scientific” strategies of the regulator. In turn, the regulator places responsibility on companies for resolving competing regulatory demands. Successive delegation leads to juridification as well as regulators vying to retain primacy for their regime. This problem is examined through analysis of responsibilities for subcontractor safety under Australian health and safety law and sections of the Australian Trade Practices Act 1974 aimed at protecting competition.

Governing the gap: Forging safe science through relational regulation

“…Although the pragmatic, relational regulation practiced by the EHS coordinators can be interpreted as an informal accommodation to formal rules and as such a reproduction of the gap between law on the books and law in action (which we will suggest in the conclusion), we emphasize here the important, complementary role played by the authority established and aspirations articulated in formal law without which the inhabiting and enacting practices would not exist or be legitimate (Ewick & Silbey 1998, 2003. The layers of accountability from laboratory through the academic hierarchy coming from the EHS administrative hierarchy and hence to the system qua system were enabled and ultimately normalized by the probability of external audit (Power 1997;Strathern 2000).…”

“…To manage this continuous cycle of observing and correcting, the coordinators needed to know what hazards were regulated, what forms of containment the regulations required, and how to identify and evaluate the diverse research procedures and hazards in the different laboratories. These responsibilities were complex because coordinators had to ensure that the labs in their departments could pass inspections by a range of local, state, and federal agencies (such as the city building inspector and the state department occupational health and safety officer) not all of which were entirely consistent (Haines 2003). Although the coordinator position was designed to work in tandem as a peer with the specialists, most of the specialists regarded the new EHS coordinators as subordinate interlopers who lacked the requisite expertise.…”

Financial services and consumer protection after the crisis

“…Regulatory scholars often fail to pay enough attention to the ideological differences which underpin law or regulation, because rather than focus on the differences between regulatory goals they focus on the differences between compliance strategies (Haines and Gurney, 2003).…”

‘Constitutional Dialogue’: An Overview

“…peer review within networks or transnational codes of conducts). 84 Although concepts such as 'conversation' , 85 'negotiation' 86 and 'conflict' 87 have been explored in the regulation literature, the 'dialogue' lens may provide a useful new perspective as it may accommodate an easier way of making the connection between regulatory practices and constitutional values.…”