Document Type
Article
Publication Title
Georgetown Law Journal
Publication Date
4-2003
ISSN
0016-8092
Page Number
757
Keywords
Administrative law, the quality of rules, regulation
Disciplines
Administrative Law | Law
Abstract
Part I of this Article describes the phenomenon of regulatory accretion from several perspectives. We start by using the hypothetical professor-turned- monarch to isolate regulatory accretion as an independent variable in the operation of regulatory systems, separate from the three conventional topics of administrative law scholarship--efficiency, clarity, and institutional accountability. To describe regulatory accretion, we then define a range of metrics, showing that over the last fifty years, regulatory growth has been the rule rather than the exception using virtually any measure. We also show why regulatory law theory suggests that we should expect accretion to be the dominant dynamic in regulatory systems, overwhelming any forces of "regulatory erosion." We close Part I with evidence from a variety of sources, including a survey we conducted of attorneys practicing environmental law, that the regulatory community-both regulators and the regulated-perceives regulatory accretion as a significant factor in the prevalence of noncompliance and the thwarting of policy objectives.
Part II lays out our theory of how regulatory accretion, even of rules that are perfectly efficient, clear, and institutionally valid, increases noncompliance by changing the very quality of the operation of the regulatory system. Rules impose what we call information burdens and effort burdens on compliance behavior. These burdens have been the focus of most of the literature on regulatory compliance. The conventional view is that compliance is simply a matter of (1) investing the appropriate level of resources toward gathering the information needed to perform the tasks required to comply (information burden) and (2) performing those tasks (effort burden). However, accretion of rules introduces a third challenge to compliance, however, which we call system burdens.
In Part III, we explore the practical implications of system burdens. There is always bound to be some residual or background noncompliance, what regula- tory law theory calls "slippage."' Additional investment in enforcement and other means of influencing compliance behavior may chip away at this residual noncompliance, but it will not do so with equal success across the three forms of compliance burdens. Because it is not associated with discrete rules, noncompliance stemming from system burdens will be much harder to resolve than noncompliance related to effort and information. In regulatory fields that experi- ence high levels of system burdens, such as environmental law, there will be high rates of noncompliance; and, more importantly, compliance itself may be difficult to translate into a tangible policy goal "payoff." This combination can lead the regulated community to value compliance behavior less and to question the legitimacy of the system in general.
In Part IV, we offer observations about how regulatory law can respond to the problem of accretion. We describe the fallacy of rule-specific solutions that dominate conventional regulatory reform proposals, positing instead that any meaningful response must tap into system-level behaviors.
Recommended Citation
J.B. Ruhl and James Salzman,
Mozart and the Red Queen: The Problem of Regulatory Accretion in the Administrative State, 91 Georgetown Law Journal. 757
(2003)
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/492