Georgetown Law Journal
Since the New Deal, and even before, regulatory law has grown relentlessly ever more massive, detailed, and encompassing. The sentiment, "there's too much law", surely rings true on a daily basis to both practitioners and regulated parties, but there is remarkably little scholarship delving beneath this glib cliche. Scholarly elaborations on "optimal precision" and "mud and crystals" explore the design of individual regulations, and are valuable in that sense, but they do not examine the systemic implications of regulatory accretion. As easy as it is to find quips in the literature decrying the accumulation of "too many rules", one searches in vain for principled analysis of the problem and its solutions. We argue that regulatory accretion warrants serious consideration in its own right. Accretion presents a different kind of problem than the traditional critiques of inefficiency, complexity, or democratic accountability. It creates a separate type of challenge that has not, and will not, be addressed adequately by many of the entries in the current parade of proposed reforms. Part I of the Article describes the phenomenon of regulatory accretion from several perspectives. We define a range of metrics, showing that over the last 50 years, regulatory growth has been the rule rather than the exception using virtually any measure. We also show why regulatory law theory suggests we should expect accretion to be the dominant dynamic in regulatory systems, overwhelming any forces of regulatory "erosion". We close Part I with evidence that the regulatory community - both regulators and the regulated - perceives regulatory accretion as a significant factor in the prevalence of noncompliance and the fulfillment of policy objectives. Part II lays out our theory of how regulatory accretion, even of perfect rules, increases noncompliance by changing the very quality of how the regulatory system operates. The conventional view is that compliance is simply a matter of investing the appropriate level of resources toward gathering the information needed to perform the tasks required to comply (information burden), and then performing them (effort burden). Accretion of rules adds a third challenge to compliance, however, which we call system burdens. These burdens arise from the operation of the collection of rules as a system. Overlooked in regulatory law theory, system burdens can confound compliance even when sufficient resources are devoted to meeting all the effort and information burdens. In Part III we explore the practical implications of system burdens. There is always bound to be some residual or background noncompliance, what regulatory law theory calls "slippage". Additional investment in enforcement and compliance behavior may chip away at this residual, but will not do so with equal success across the three forms of compliance burdens. Noncompliance stemming from system burdens will be much harder to resolve than will noncompliance associated with effort and information, because it is not associated with discrete rules. In regulatory fields that experience high levels of system burdens, such as environmental law, there will be high rates of noncompliance and, more important, compliance itself may be difficult to translate into a tangible policy goal "payoff". This combination can lead the regulated community to question the legitimacy of the system in general, and value compliance behavior less. 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, positing instead that any meaningful response must tap into system level behaviors. Because of the focus in regulatory law and theory on efficiency, clarity, and accountability, conventional policy approaches generally describe problems in rule-specific terms. Although the number of rules in the administrative state may trigger system burdens that interfere with the very goals of regulation, the solution is not, it cannot be, to reduce the number of rules. Rather, as we go on to explain, the best strategy for managing system burdens is to evolve with them. Rather than myopic attention to each rule, the focus should be on building adaptive structures in the administrative system itself, so as to take advantage of the system-wide nature of large rule-based regimes. We show that the emerging body of literature on regulatory reform adopts this approach through its focus on market-based, information-based, and performance-based regulatory instruments. Our model of regulatory accretion offers original insights into not only why deregulation offers little promise in addressing system burdens but, more important, a central principle on which to design the next generation of regulation.
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
Available at: https://scholarship.law.vanderbilt.edu/faculty-publications/492