Hundreds of federal safety specifications for factory equipment could be encompassed within one general principle: “Tools and equipment shall be reasonably suited for the use intended, in accordance with industry standards.” Is there room for disagreement? Yes, but only at the margins. Instead of wasting regulatory resources on foot faults that don’t matter, the safety agency could redeploy its resources to finding workplaces that are actually unsafe.
I think that principles-based regulation would have a few problems but many advantages. One problem is that there would be a zone of uncertainty about what constitutes compliance.
One advantage is that Congress could spell out the principles, because principles-based regulation would not require technocratic expertise. That would restore better Constitutional balance. Another advantage is that it would force whoever writes the regulations to think in broad terms about the aims of regulation. You would not be mindlessly piling on regulations with high costs and low benefits.
However, the main advantage is as Howard describes it. Most people want to do the right thing, especially if you respect their autonomy. If you spell out in broad terms what the “right thing” means, people will use their creativity to achieve that. Instead if you spell out do’s and don’ts in detail, they will use their creativity to achieve compliance with the letter but not with the spirit of the regulation.
I think the biggest issue with principles-based regulation is failures will happen and regulators will be blamed no matter what. Remember the fertilizer fire in Texas several years back? One of the conservative talking points was it was the regulators missed the factory failures and they were at fault. In fact, the regulators did not miss the factory being in danger of a fire and made numerous citations. However, they made the decisions not to close down the factory and there were probably another 50 factories in similar conditions that did not go up in flames. So are you going to give these bureaucrats some room for failure here?
but micro-managing empowers the bureaucrats so why would they ever agree to change that?
The one thing I worry about is whether principles-based regulation is consistent with the rule of law.
+1
To me, principles based regulation just gives regulators an unlimited license to second-guess every business decision. With specific rules, you can at least have reasonable certainty that you are in compliance with them. I’d flip it around, and say that the regulator will take no action on a technical failure to abide by a regulation where the harm that the overall regulation was intended to address is unlikely to arise from the failure.
While i like the idea of principals based regulation, you need the culture that will support it. If every enforcement action requires a lawsuit to resolve the system would collapse. I’m not sure that America has a legal culture that would be amenable to this anymore.
That just means the trial system needs reform. It is not like it is efficient now. Saying it is too inefficient to handle more suits make me ask if it is already too inefficient to handle the current, probably depressed, load.
My first thought when reading this was that before I became a lawyer I would have been opposed to this because it seemed too vague. But during legal education I was constantly surprised at the number of standards that basically amounted to industry best practices (like negligence, which is one of the most common torts).
On the other hand, a basic negligence standard was all that protected workers before the safety regulations, and that didn’t work so now we have safety regulations. Expectations about safety were different, so perhaps things would be different this time.
And we have safety regulations now, so now workers are safe and the regulations are obviously exogenously what made them safe 😉
Haha touche!
The medical system comes to mind. I have great difficulty getting a prescription, and yet now prescription drugs kill more than illegal drugs. I guess the drug war worked 😉
No business would ever sign off on principles based regulation. The businesses that care would rather spend $100k on pointless requirements to be in the clear than save that money at the risk some arbitrary regulator will slap them with a $1M fine over a disagreement over what is reasonable.
The problem with regulatory overreach isn’t just that it’s expensive; it’s that it makes compliance too difficult to keep track of. Businesses want certainty more than they was cheapness.
But in many ways we do have principles-based regulation already. Aside from safety (OSHA stuff), most matters of employment regulation are guesswork. Look at how you define exempt versus non-exempt employees: aside from the minimum salary rule, virtually all of the rules are highly debatable in application.
An important difference however is that aside from government contractors, most businesses rarely if ever have government inspectors tromping through asking them to show they followed all the proper regulatory principles for the people who got hired/fired/promoted in the past year, like industrial facilities have with the EPA or OSHA. It can come up when an employee files a complaint, but my sense is these occur much more rarely. If I was getting scrutinized and fined regularly then I probably would pound the table for clearer rules.
A Smithian might say this is another way of framing the rules for justice. Some circumstances are best judged using rules that are precise, accurate and can only have negative evaluations (commutative justice, or bright red line). Others are best judged on loose, vague, and indeterminate rules where propriety is created though interactions and experience (distributive or estimative justice, or principles based).
Principles-based jurisprudence has proven too hard to police or discipline in a sensible way, to prevent abuse of discretion and interpretive authority. And that’s on top of abuse at the prosecutorial level, where it is almost impossible to successfully argue one is being singled out.
Consider, for example, tort and contract law have evolved over the last 60 years in part by appeal to ‘logical extensions or implications’ of general principles, and the result has not been a good one.
Most companies and people want and need predictability, safe harbor, and a rule of lenity and one free bite of new apples, that is, leniency for innocent transgressions of novel / first-announcement violations.