Upside Down and Inside Out: Regulators and Regulatory Processes in Contemporary Perspective

• Author: Bronwen Morgan
• Pages: 150-167

The Handbook of Law and Society, First Edition. Edited by Austin Sarat and Patricia Ewick.

© 2015 John Wiley & Sons, Inc. Published 2015 by John Wiley & Sons, Inc.

Introduction

Scholarship on regulators and regulatory processes has exploded over the past

several decades, as two voluminous recent handbooks on the subject demonstrate

(Baldwin, Cave, and Lodge 2010; Levi‐Faur 2011). Regulation is the practice of

shaping significant institutions, particularly businesses, so as to take into account

social purposes that might not be taken into account in the ordinary process of

doing business (Morgan and Sterett 2014). Common to regulatory governance in

diverse political contexts is a generalized aspiration to govern at arm’s length,

primarily by deploying technical expertise that implements and enforces rules.

The ubiquity of this mode of governing fits a time dominated by fiscal constraints,

ideological hostility to government discretion and the collapse of clear ideological

party‐political cleavages. But the evident appeal of exploring political, legal, social

and economic processes through a regulatory lens has also been driven by a steady

expansion of the range of referents implied by the notion of regulation. This expan-

sion can be observed from two angles: the diverse purposes of regulation, and the

range of institutions and actors understood as carrying out practices of regulation.

Regulatory governance has to some degree always been animated by plural

political agendas, but there has been a three‐stage expansion in prominent regulatory

rationales over the last century. Many histories of regulation as a distinct site of

governance begin with the economic regulatory institutions developed in the US in

the late nineteenth century to promote economic efficiency (Law and Kim 2011).

Economic efficiency as a regulatory rationale continues to exert an extremely pow-

erful pull in accounts of regulation, as will emerge later in this chapter, but the 1960s

and 1970s brought a much increased focus on “social” regulation that aimed to

Upside Down and Inside Out

Regulators and Regulatory Processes

inContemporary Perspective

Bronwen Morgan

10

Regulatory Processes in Perspective 151

increase protection from risk or harm, especially in environmental health and safety

in the US and Europe (Harris and Milkis 1996). In more recent decades, the rise of

market‐based approaches to regulation has intertwined purposes of risk protection

and economic efficiency rationales, as for example in the operation of market‐based

approaches to pollution rights and emissions‐trading regulatory schemes, both of

which demonstrate how government officials remain deeply involved in regulation

even when economic efficiency rationales are dominant (Ureta 2014). The third

expansion involves social solidarity and human rights as also providing justifica-

tions for the emergence of many regulatory regimes (Prosser 2010), a development

which parallels the increased contracting‐out and delegation of many public state

functions to private and non‐profit sectors and a related interest in the “regulatory

welfare state” (Haber 2010).

This last point links directly to the expansion of the range of institutions and

actors understood as the focus of regulatory scholarship. While older definitions of

regulation (such as “the imposition of legal orders on those engaged in economic

activity”; Kagan 1978) might once have pointed to formal state legal orders that

targeted private (mostly) business actors, the boundaries of these are now compre-

hensively blurred. The blurring derives from the significant rise of private actors

carrying out public functions, an increased stress on non‐legal forms of regulatory

tools (ranging from economic incentives to educational guidelines to design envi-

ronments) and the increasingly complex array of non‐state and transnational actors

that participate in and generate regulatory regimes. Some specific directions through

this increasingly perplexing morass will be carved out as the chapter proceeds, but it

seems that, for the time being, the appeal of a regulatory perspective lies precisely in

that it provides a conceptual framework that is sufficiently open‐textured to at least

provisionally accommodate the challenges to national sovereignty, formal legal

authority and distinctions between public and private spheres being wrought by

contemporary political economy.

The purpose of this chapter is not to survey the entirety of the expanded

landscape of regulatory scholarship, nor to simplify its overall description, but

rather to chart three emerging trajectories that are energizing the field and pushing

it in new and stimulating directions. These three trajectories are cumulatively

turning the focus of regulatory scholarship “upside down” (from North to South),

“inside out” (from state legality and nation‐state structures), and towards a

surprising theoretical rapprochement (between “governmentality” and “gover-

nance” approaches to regulation).

The first of these three trajectories is a welcome burst of comparative, national‐

level empirical scholarship about regulation “beyond the North Atlantic basin”

(Moran 2011), focused on the regulatory state but also extending to the broader

dynamics of regulatory governance. This strand of scholarship challenges enduring

distinctions between “politics” and neutral technocratic expertise. The second

development is an explosion of scholarship on transnational and globalized forms of

regulation, a phenomenon which has attracted interest from scholars who have not

previously focused on “regulation” as such. This strand of scholarship entrenches