Lecture 3 - Regulation Flashcards
What is regulation? lessig
Regulation = The constraining effect of some action, or policy, whether intended by anyone or not.
What is the Old School and New Chicago school regulation (Lessig, 1998)
From the fact that forces outside law regulate, and regulate better than law, the old school concludes that law should step aside.
The old school identifies alternative regulators as reasons for less activism.
The new school identifies alternatives as additional tools for a more effective activism.
The moral of the old school is that the state should do less.
The hope of the new is that the state can do more.
What four constraints are there to regulating behaviour according to lessig?
- Law
a. Directs behaviour in certain (clear) ways; it threatens sanctions ex post if those orders are not obeyed. - Social norms
a. Not constraining through a centralized enforcement of a state but regulating through the enforcement of a community. - Markets
a. Markets regulate through the device of price and present a distinct set of constraints on individual and collective behavior. - Architecture
a. The features of the world— whether made, or found— that restrict and enable in a way that directs or affects behavior. They are features of this world’s architecture, and they, in this sense, regulate.
How does the Chicago Old School and New school see regulation through law|?
The Old Chicago School does this as a way of diminishing the significance of law. It argues that law is, relative to these other constraints, a less effective constraint. Other regulators, the old school argues, regulate better than law. Hence law, the argument goes, would better let these regulators regulate
The New Chicago School aims at a different end
- The New Chicago School aims at a different end. Unlike the old school, the new school does not see these alternatives as displacing law. Rather, the new school views them as each subject to law—not perfectly, not completely, and not in any obvious way, but nonetheless, each itself an object of law’s regulation
o Norms might constrain, but law can affect norms (think of advertising campaigns).
o Architecture might constrain, but law can alter architecture (think of building codes).
o The market might constrain, but law constitutes and can modify the market (taxes, subsidy).
Thus, in the view of the new school, law not only regulates behavior directly, but law also regulates behavior indirectly, by regulating these other modalities of regulation directly
What are the two aspects of regulation according to Chicago new school (Lessig)
- In its direct aspect, the law uses its traditional means to direct an object of regulation.
- In its indirect aspect, it regulates these other regulators so that they regulate the individual differently
These techniques of direct and indirect regulation are the tools of any modern regulatory regime. The aim of the New Chicago School is to speak comprehensively about these tools —about how they function together, about how they interact, and about how law might affect their influence.
What are objective and subjective contraints in regulation Lessig
- Objective and Subjective constraints
o Constraints can be either objective or subjective, or both.
A constraint is subjective when a subject, whether or not consciously, recognizes it as a constraint.
It is objective when, whether or not subjectively recognized, it actually functions as a constraint.
o Not all objective constraints are subjective; nor are all subjective constraints objective.
There is therefore a slippage between objective and subjective constraints, and this slippage will affect the optimal regulatory strategy.
How can meaning be a constraint (Lessig)
o A second tool for the work of the New Chicago School is the capacity to speak of meaning as distinct from norms.
The regulatory effect of norms comes not from something physical or behavioral. The regulatory effect comes from something interpretive
* The cost (whether internal or external) of deviating from a social norm is not constituted by the mere deviation from a certain behavior; it is a cost in part constituted by the meaning of deviating from a certain behavior.
* To understand this constraint, we must speak of ‘‘ social meaning’ in the objective sense.
o There are at least two kinds of social meaning:
Meaning that is in context contestable.
* These meanings are subjects of discussion and interact with social life.
Meaning that in context is not contestable.
* These meanings have become internalized and automatic.
o To speak about the place that meanings hold in the regulation of social meaning and law, we need a way to bifurcate our talk about meanings
How can evolution and activism be a constraint?
o A third tool is a way clearly to distinguish changes in constraints that are a product of self conscious action (activism) from changes in constraints that are a product of what we might call evolution.
A complete account of how constraints change is an account of how these different constraints interact, but the complexity of this complete account easily overwhelms.
What are the elements of Regulation
- Defining a standard
- Monitoring: monitoring whether the standard is being applied
- Behaviour modification: a company applying the standard
What are the three types of regulation?
- Narrow regulation: Command and control (CAC), having full control and say over the regulated.
- Broader regulation: Deliberate state influence, not complete control or super strict but the state is creating a desired environment through laws and regulations.
- Broadest regulation: Any form of social or economic influence, regulation is not apparent but still has an effect.
Repeat the regulation table
What is deliberate and accidental regulation?
- Deliberate and accidental intentions
o Deliberate; create a regulation that achieves the desired outcome.
o Accidental; if you create a regulation that causes people to do things that were not intended.
How can Regulation restrict and facilitate:
- Restrict: preventing something, f.e. not allowed to sell something.
- Facilitate: regulation increases something, f.e. subsidies for electric car use.
Why would one regulate the internet?
The problem is that people do things on the internet that are undesirable or illegal.
What are the fundamental issues of regulating the internet?
- Jurisdiction & sovereignty
a. Who rules and whose laws apply. - Legitimacy
a. Who makes the rules and who enforces them. - Attribution
a. What is the action defined as and who committed the crime.
