Regulatory Abdication in Practice

Abstract

“Meta-regulation” refers to deliberate efforts to induce private firms to create their own internal regulations—a regulatory strategy sometimes referred to as “management-based regulation” or even “regulation of self-regulation.” Meta-regulation is often presented as a flexible alternative to traditional “command-and-control” regulation. But does meta-regulation actually work? In her recent book, Meta-Regulation in Practice: Beyond Normative Views of Morality and Rationality, Fiona Simon purports to offer a critique of meta-regulation based on an extended case study of the often-feckless process of electricity regulatory reform undertaken in Australia in the early part of this century. Yet neither Simon’s case study nor her book overall succeeds in undermining the rationale for using meta-regulation.

In this review essay, I highlight the many limitations of Simon’s argument. I show how, in making existing scholarship her foil, Simon mischaracterizes what regulatory scholars have had to say about meta-regulation. Not only does Simon misleadingly make scholars out to be naïve and overly optimistic about what can be expected from meta-regulation, but she also ignores entirely the peer-reviewed empirical research that shows that meta-regulation can work. She also misstates what existing work has to say about the mechanisms that can make meta-regulation effective. The most significant problem with Simon’s book, though, is that the case study she presents in her effort to criticize meta-regulation theory does not actually describe a strategy based on meta-regulation. Rather, it shows Australian electricity regulators as passive, defensive, and weak. What Simon’s book actually offers is a detailed case study of regulatory abdication in practice.

Citation
Coglianese, Cary, Regulatory Abdication in Practice (February 7, 2020). U of Penn, Inst for Law & Econ Research Paper No. 20-11.

Available from the SSRN site.

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State Bar of California publishes 2017 Annual Discipline Report

In 2017 the State Bar and its prosecutorial arm, the Office of Chief Trial Counsel, implemented a number of comprehensive structural and process re-engineering reforms designed to improve public protection for all California residents. Given the ambitious nature of these reforms, key measures from the report indicate a decline in short-term performance as compared to the previous year.

Key 2017 workload measures include:

  • Received 15,175 new complaints of attorney misconduct; of these 524 were immigration related;
  • Received 668 unauthorized practice of law complaints, 158 of which were immigration related;
  • Referred 315 unauthorized practice of law matters to law enforcement for potential prosecution;
  • Closed 14,063 cases and filed formal charges in 483;
  • Recommended disbarment or suspension to the Supreme Court in 592 cases;
  • Disbarred 129 attorneys; suspended 134 attorneys; and reprimanded 52 attorneys.

An additional performance measure included in the Annual Discipline Report is case backlog, which grew in 2017. The report notes that while the current backlog is up, the Office of Chief Trial Counsel has been developing a new system of case prioritisation to provide more protection to vulnerable victims of attorney misconduct, which will ultimately ensure that the cases that cause the most harm to the public never end up in backlog status.

“Californians deserve to be protected by a strong attorney discipline system. Our internal reforms and improvements will help the State Bar better achieve our mission of protecting the public from attorney misconduct,” said Leah Wilson, Executive Director of the State Bar of California.

Major initiatives of the State Bar Office of Chief Trial Counsel in 2017 include:

  • Development of an improved case prioritisation system to devote more resources to the cases which pose the greatest threat to the public;
  • Implementation of a new Case Management System to increase transparency, effectiveness, and efficiency;
  • Assessment of workload to allocate heavy caseloads among staff fairly and efficiently.

The State Bar’s ongoing reform efforts included additional measures  taken in 2017 to support the attorney discipline system and public protection:

Read the full 2017 Annual Discipline Report.

 

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