The Structure of Regulation: Explaining Why Regulation Succeeds and Fails

157 Pages·2021·3.404 MB·English

by  David Williamson, Gary Lynch-Wood

THE STRUCTURE OF REGULATION
ELGAR STUDIES IN LAW AND REGULATION
Series Editor: Roger Brownsword, Professor of Law, King’s College London,
UK
Regulation is a ubiquitous concept in today’s world. The proliferation of
new technologies necessitates continual re-appraisal of the rules that govern
them, whilst globalisation increases the complexity of interaction between
governance systems on a national, regional and international level. As a field
of study, regulation continues to grow and evolve, both in consideration of
specific sectors, and at a conceptual level, as the rationale and motivation for
regulation are scrutinised.
This new and exciting series is an important forum for original works of
scholarship that explore regulation and its interaction with the law. It favours
work that has a critical, innovative or analytical perspective and, whilst having
a primary focus on legal writing, welcomes approaches that draw on other
disciplines. The scope of the series encompasses a wide range of regulatory
fields, from biotechnology and ICT to machine learning and AI, from security,
food, and environment to health, leisure, and employment. At the same time
the series plays host to broader discussions on the nature of risk, governance
models, the role of democracy, regulatory theory and many others.
The primary mission of the series is to stimulate the development of original
thinking across law and regulation and to foster the best theoretical and empir-
ical scholarship in the field.
Titles in the series include:
Generic Top-Level Domains
A Study of Transnational Private Regulation
Tobias Mahler
Regulatory Stewardship of Health Research
Navigating Participant Protection and Research Promotion
Edward S. Dove
Competition and Regulation in the Data Economy
Does Artificial Intelligence Demand a New Balance?
Gintarė Surblytė-Namavičienė
The Structure of Regulation
Explaining Why Regulation Succeeds and Fails
David Williamson and Gary Lynch-Wood
The Structure of
Regulation
Explaining Why Regulation Succeeds and Fails
David Williamson
Professor Emeritus, Staffordshire University and Honorary
Senior Research Fellow, School of Law, University of
Manchester, UK
Gary Lynch-Wood
Senior Lecturer, School of Law, University of Manchester, UK
ELGAR STUDIES IN LAW AND REGULATION
Cheltenham, UK • Northampton, MA, USA
© David Williamson and Gary Lynch-Wood 2021
All rights reserved. No part of this publication may be reproduced, stored in a
retrieval system or transmitted in any form or by any means, electronic, mechanical or
photocopying, recording, or otherwise without the prior permission of the publisher.
Published by
Edward Elgar Publishing Limited
The Lypiatts
15 Lansdown Road
Cheltenham
Glos GL50 2JA
UK
Edward Elgar Publishing, Inc.
William Pratt House
9 Dewey Court
Northampton
Massachusetts 01060
USA
A catalogue record for this book
is available from the British Library
Library of Congress Control Number: 2021943597
This book is available electronically in the
Law subject collection
http://dx.doi.org/10.4337/9781800883307
ISBN 978 1 80088 329 1 (cased)
ISBN 978 1 80088 330 7 (eBook)
For Renia and Kerry

Contents
List of figures ix
Acknowledgements x
1 Introduction to The Structure of Regulation 1
Archetypes, compliance interactions, and the structure of
regulation 2
Structure of the book 5
2 Regulation 9
Command and control, the bedrock of state intervention 10
Contexts for legal and regulatory change 15
Alternative instruments 24
Responding to concerns 32
3 Regulation and rule following 43
Why rule following is a practice 45
Learning to follow rules 49
The variable behaviour of firms 56
Limits to steering 60
Steering firms 65
4 Conditions of regulation 73
The conditions required of regulation 75
Levels of compliance 87
5 A revised view of regulation 95
Self-sustaining responses to regulation 96
Correcting mechanisms and trade-offs 99
A methodology for regulating 112
vii
viii The structure of regulation
6 Structural exclusion 121
An outline of structural exclusion 121
Revisiting the compliance archetypes 122
Implications for the rule of law 125
References 130
Index 139
Figures
1.1 Compliance archetypes 3
4.1 Movement of the conditions of regulation 89
5.1 Self-sustaining responses to regulation 99
5.2 The compliance line 104
5.3 Types of compliance line 106
5.4 Improving regulatory control through feedback 111
6.1 Minmax compliance consequences 123
ix