Encyclopedia of Law & Economics - 9400 SELF-REGULATION

9400

SELF-REGULATION

Anthony Ogus

University of Manchester

© Copyright 1997 Anthony Ogus

Contents

Abstract
1. Introduction
2. The Nature of Self-Regulation
3. Spontaneous Private Legal Ordering
4. Self-Regulation as Delegation of State Law-Making Powers
5. Sector-Specific Studies
6. Competitive Self-Regulation
7. Mixed Systems
Acknowledgements
Bibliography on Self-Regulation (9400)
Other References


Abstract

Self-regulation encompasses a wide range of arrangements, from private orderingwithout resort to legal rules to state-enforced systems of delegated rules.Transaction cost analysis has been used to explain how private orderingemerges and principal-agency theory to indicate the advantages, but also thedifficulties, of state delegation. While public choice theory, as supported byempirical studies, suggests that rent-seeking is inherent in delegatedself-regulatory regimes, institutional structures capable of controlling thisphenomenon can be envisaged.

JEL classification: D45, D71, K20

Keywords: Self-Regulation, Private Ordering, Decentralized Law-Making,Regulatory Competition.

1. Introduction

Self-regulation, understood narrowly as law formulated by private agencies togovern professional and trading activities, has been rigorously criticised bylawyers and economists alike. From a legal perspective, it is seen as an exampleof modern "corporatism", the acquisition of power by groups which are notaccountable to the body politic through the conventional constitutionalchannels (Schmitter, 1985). The capacity of such groups to make rules governingthe activities of members of an association or profession may itself constitute anabuse if they lack democratic legitimacy (Page, 1986). The potential for abusemay become intolerable if, and to the extent that, the rules affect third parties(Cane, 1987). Further, if the group's functions cover policy formulation,interpretation of the rules, adjudication and enforcement (including theimposition of sanctions) as well as rule-making, this conflicts with basic notionsof separation of powers (Harden and Lewis, 1986).

For their part, economists have traditionally focused on how self-regulatorypowers may be exercised to impede competition on the supply side of the market.Barriers to entry may be created, thereby raising prices and conferring rents onincumbent practitioners; standards governing practice may be devised more toconfer utility on suppliers than to meet consumer preferences (Shaked andSutton, 1981a). And the prospect of gaining such advantages may lure groupsinto spending resources to persuade legislatures to grant them self-regulatorypowers - a social deadweight loss (Tullock, 1967).

While criticisms such as these may be appropriate in some circumstances,they are based on a very incomplete picture of self-regulation. The modernlaw-and-economics literature has been concerned to explore a much broaderconception of the phenomenon and in so doing to identify institutionalarrangements which may escape, or meet, the traditional criticisms and whichthereby may be conducive to allocatively efficient outcomes. A survey of thisliterature must necessarily begin with an investigation of the nature ofself-regulation.

2. The Nature of Self-Regulation

In its most literal sense, and as it used in psychology (Carver and Scheier, 1981),self-regulation means acting according to one's own volition, and not as aresponse to an external constraint. Thus interpreted, the concept would coveran infinite number of self-imposed behavioural standards, including thosedetermined internally by the management of a firm. Although the latter may haveno legal significance, they are not irrelevant to discussions of regulatorysystems (Bardach and Kagan, 1982; Cheit, 1990). The internal standards aredesigned to ensure quality of the kind which will meet consumer preferences. Onthe assumptions of competition between suppliers, adequate informationpossessed by consumers and an absence of externalities, there is no need torender the standards legally enforceable.

When used in a legal context, the "self" in "self-regulation" is not used in theliteral sense. Rather it connotes some degree of collective constraint, other thanthat directly emanating from government, to engender outcomes which wouldnot be reached by individual market behaviour alone (Black, 1996). It is alsonormally taken to imply "a fairly well established and generally recognised setof rules, whether customary or reduced to writing, in accordance with which theactivity is regulated" (Cane, 1987).

There is, nevertheless, a multitude of institutional arrangements which fallsomewhere between government regulation on the one hand and individual,unconstrained behaviour on the other and which can therefore be treated asself-regulation (Rees, 1988; Cheit, 1990). The possibilities can be considered ontwo spectra depicting, respectively, degrees of autonomy from government andlegal force (Page, 1986; Baggott, 1989). The first ranges from, at one extreme,rules private to firms, groups or organizations to, at the other, those approvedby a government minister or some independent public authority; in between,representatives of the public interest may participate in, but not conclusivelydetermine, the decision-making. The second encompasses varying degrees oflegal force. The rules may be: formally binding, non-compliance leading to publiclaw or private law sanctions; codes of practice which presumptively applyunless an alleged offender can show that some alternative conduct was capableof satisfactorily meeting the regulatory goals; norms the breach of which leadsto non-legal sanctions, such as ostracism; or standards compliance with whichis purely voluntary.

3. Spontaneous Private Legal Ordering

In its most complete sense, and thus at one end of the spectra described above,self-regulation involves a system of private ordering, without any form of stateintervention; that is, without any imposition of rules by those with politicalpower. This phenomenon is covered by other entries (notably SpontaneousEmergence of Law, 9500, and Non-Legal Sanctions, 0780) and the treatment hereis consequently brief - for a valuable overview of the literature, see Klein (1997).

Economic explanations of how informal systems emerge are epitomized bystudies of primitive societies (Benson, 1988). The basis is reciprocity: individualsrecognise the benefits they will derive from behaving in accordance with others'expectations. Such reciprocity may be reflected in individual agreements but, asstandards of behaviour, will spread to other members of a group as propertyrights when the benefits of doing so exceed the costs of defining those rights.While originally disputes may be resolved by force, individuals will normallyfind non-violent methods (for example, arbitration or mediation) to be cheaper;and ostracism from the group will generally be an adequate sanction fornon-compliance.

Analysis of this kind has been used to explain other historical self-orderingarrangements, including: the Maghribi Traders (Greif, 1989); the Law Merchant(Benson, 1989; Milgrom, North and Weingast, 1990); medieval Iceland(Friedman, 1979); and the mining camps in the American West (Anderson andHill, 1979; Umbeck, 1981). In more modern contexts, equivalent systems canemerge within groups to reduce the costs of drafting commitments and ofestablishing and activating enforcement systems (Charny, 1990). Theexpectation is that such cost savings will be significant where the group is smallenough for informal control - generally requiring continuing face-to-faceinteraction - but where also power is broadly dispersed (Ellickson, 1993).Illustrative studies are those on diamond traders (Bernstein, 1992) and neighbourdisputes (Ellickson 1991).

Within a broader social setting decentralized law-making encounters theproblem that some individuals will tend to free-ride on the enforcement of others.This may be only partly solved by the internalization of norms, and thus publicinstitutions (courts) are necessary to identify situations requiring state imposedincentives (Cooter, 1996). Nevertheless, informal systems also occur ininternational trading environments (Benson, 1992; see also Schanze, 1988). Herethere is an increased need to accommodate the system to inter-group interaction.The co-existence of groups creates incentives for each to compete to attract orhold members and a form of mutual insurance emerges to prevent individualstaking advantage of other individuals and then escaping to another group(Benson, 1993).

A not insignificant part of the literature addresses the normative issue ofchoice between public and private ordering. Some (for example, Rothbard, 1973;Friedman, 1973; Benson, 1990) reveal a hostility to almost all instances of stateimposed law, arguing from public choice theory that it is predominantlymotivated by pressure for wealth transfers and undermines the incentives of thereciprocity-based system of property rights. But, apart from the importantreminder than the consequences of government failure may be more severe thanmarket failure, it is not clear that these contributions add much to the debatewhich has taken place within the mainstream of law-and-economics (Katz, 1996),and which has its origin in the Coase Theorem (Coase, 1960). The ability ofconsensual bargaining to achieve efficient outcomes is a function oftransactions costs, thus suggesting that the normative question of when privateordering should prevail should be determined by an analysis of how those costsimpact on any given situation. Self-regulation may, therefore, be an appropriatesolution where bargaining, at low cost, can occur between risk-creators andthose affected; occupational health and safety provides a familiar example (Rees,1988; Ogus, 1995; though for reservations, see Baldwin, 1987).

4. Self-Regulation as Delegation of State Law-Making Powers

In the previous section, we examined systems of private ordering which emergeindependently of state intervention. As a legal phenomenon, self-regulation ismore usually analysed as a deliberate delegation of the state's law-makingpowers to an agency, the membership of which wholly or mainly comprisesrepresentatives of the firms or individuals whose activities are being regulated.

Public interest arguments for such delegation can be derived fromprincipal-agent theory (Tuohy and Wolfson, 1978). Once the principal (normally,the legislature) has decided that an activity ought to be regulated on groundsof market failure, for example externalities or information asymmetries, thequestion arises what form of regulation is appropriate. That can be assessed byreference to such variables as the costs of information upon which therule-making decisions are to be based and those of monitoring compliance andenforcing the rules. The principal may rationally conclude that these costs wouldbe minimised if the tasks of rule-formulation, monitoring, adjudication andenforcement were to be conferred on a self-regulatory agency (hereafter SRA)(Trebilcock, 1983; Cane, 1987).

Since SRAs typically command a greater degree of expertise and technicalknowledge of practices and innovatory possibilities within the relevant area thanthe principal, information costs for the formulation and interpretation ofstandards are lower. Secondly, for the same reasons, monitoring andenforcement costs are also reduced, as are the costs to the regulatees of dealingwith regulators, given that such interaction is likely to be fostered by mutualtrust. This aspect is particularly important where, as with advertising, it isdifficult to define the desired behaviour with precision and an adversarialrelationship between regulator and regulatee is likely to be counter-productive(Baggott and Harrison, 1986). In addition, to the extent that the processes of, andrules issued by, SRAs are less formalized than those of public regulatoryregimes, there are likely to be savings in the costs (including those attributableto delay) of amending rules. Finally, the administrative costs of the regime arenormally internalized in the trade or activity which is subject to regulation; in thecase of independent, public agencies, they are typically borne by taxpayers.

Delegation to SRAs should thus reduce the principal's costs of regulation;to what extent will they confer benefits of the kind which regulation is supposedto foster? Take a situation in which the quality of products or services cannotbe observed by consumers prior to purchase. Although individual firms will bemotivated to provide signals of quality (for example, product warranties), thismay be very costly or - where the characteristics of quality are not easilydefinable - not feasible. It then becomes in the joint interest of the suppliers, asrepresented by the SRA, to maintain quality by self-regulation (Gehrig and Jost,1995). And since, in such circumstances, attempts by consumers themselves tomeasure quality will also be costly and/or futile, such regulation will confer abenefit on them by obviating the need for measurement (Barzel, 1982).

Once such a regime of self-regulation has been established, individualsuppliers have an incentive to supply (at lower cost) lower quality, but since thereputation of other firms will be affected by defaulters the SRA will be motivatedto enforce the standards. On the basis of this analysis, it has been predicted thatviable self-regulatory regimes will emerge where monitoring costs for the SRAare low, the number of local markets is small, and customers are relatively mobileas between suppliers (Gehring and Jost, 1995).

At the same time, there is every reason to expect that SRAs will use theirlaw-making power to benefit their members in ways which are not consistentwith the public interest (Horowitz, 1980). As has been formally demonstrated(Shaked and Sutton, 1981a), the self-regulatory rules may create barriers to entryand thus confer significant rents on incumbent practitioners. The latter includenon-financial benefits, for example, a quiet life, as well as monetary income (Lees,1966).

Most obviously rent may be obtained where the SRA has the power to issuelicences and therefore to determine the qualifications of those who engage in theactivity (Moore, 1961). But there are also a variety of other ways in which"quality" standards may be used to promote the interests of the regulatees,rather than those of the public. For example, most professional associationshave, at some time or another, prohibited their members from advertising,ostensibly on the ground that "touting" for business is incompatible with theethical nature of professional practice (OECD, 1985). As we have seen, suchbans can eliminate wasteful consumer searches on elusive quality characteristics(Barzel, 1982), but they can also inhibit comparative price shopping, thusgenerating monopoly rents for practitioners (Trebilcock, 1982). Secondly,restrictions can be imposed on the legal form used by professional firms (forexample, insisting on partnerships and prohibiting corporations) or on theparticipation of professionals from other disciplines in the firm (OECD, 1985).Both forms of control can add to client costs insofar as they inhibit productiveefficiency of the firm (Evans, 1980) and, in some cases, make it necessary forconsumers to deal with two or more firms, rather than one (Quinn, 1982). Thequality imposed by SRAs may exceed that which presumptively will meetconsumers' preferences and not be justified by externalities; and the excessivecost will be borne by consumers (Trebilcock, 1983). Other welfare losses canarise from the tendency of SRAs to discourage diversity and experimentation(Ostry, 1978; White, 1979).

In the light of public choice theory, rent-seeking explanations of regulationare, of course, commonplace (Tollison, 1982). If rule-making remains with thelegislature or an independent agency, interest groups representing theregulatees have the task of exerting influence on those institutions and divertingthem away from public interest goals or other, competing private interest claims.Of course, delegation of the regulatory powers to SRAs relieves the groups ofthis task and the relative absence of accountability and external constraintsmaximizes the possibilities of rent-seeking - "with self-regulation, regulatorycapture is there from the outset" (Kay, 1988). Governments are motivated tomaintain or extend the use of self-regulation because, while they may derivepolitical benefits from measures which appear to benefit consumers and others,the costs are not revealed in any public accounts (Trebilcock, 1983). And it isdifficult for the cost-bearers both to determine the amount of wealth transfersand to coordinate their activities in opposing them (Van den Bergh and Faure,1991).

Although, as we shall see in the next section, there is considerable empiricalevidence to support this theory of self-regulation, it has not gone unchallenged.Dingwall and Fenn argue that it cannot explain the persistence and stability ofentry restriction; other forces must be at work to prevent pressure from potentialentrants building up to an intolerable level (Dingwall and Fenn, 1987). Suchforces may lead to the emergence of illegal (or "informal") markets (De Soto,1989), or of reasonably close, but unregulated, substitutes (Fisher, 1997). Indeed,it may be an inherent feature of regulation that it cannot control every margin ofadjustable behaviour, and thus rents are dissipated as firms seek to trade onthese uncontrollable margins (Cheung, 1974).

Weingast also finds it hard to reconcile the theory with the fact that many ofthe self-imposed restrictions can dissipate rents or seem designed to increase aperception of quality maintenance at the expense of greater rents (Weingast,1980). Drawing on Arrow's public interest analysis (Arrow, 1963), he seesself-regulation as performing a symbolic informational function: as aconsequence of the uncertainties both as to quality in the unregulated marketand to the effects of regulation there is a tendency for SRAs to adopt policieswhich improve observable features of the activity and give the appearance ofservice uniformity.

5. Sector-Specific Studies

Some studies of self-regulatory systems support the notion of spontaneous,private ordering described above. For example, there are incentives for banksvoluntarily to become members of private protective and certifying agencies(Gorton and Mullineaux, 1987; Gehring and Jost, 1995), and for voluntary "bestpractice" auditing and other standards to be diffused among different SRAs(Belcher, 1996). In the advertising industry, self-regulation has emerged as thesuppliers have perceived the benefit to be obtained from acquiring publiccreditability for their products and from creating an image of professionalresponsibility (Baggott and Harrison, 1986). But these researchers also highlightthe problem of enforcement : SRAs begin to adopt an aggressive stance onlywhere there was perceived to be a threat of intervention by public agencies. Thesame phenomenon has been observed with the self-regulation of commodityexchanges (Pirrong, 1995; see also Page, 1987; Fishman, 1993; Black, 1997).Investigations of occupational health and safety systems, as they haveincreasingly shifted towards decentralised standard-setting by localarrangements between employers and employees, suggest this has beeneffective when the systems can be related to nationally established standardsand are supported by knowledge that the arrangements will be enforced(Dawson et al, 1988). But there has been a decline in protection against riskscreated by small or non-unionised firms (Baldwin, 1987; Smith and Tombs, 1995).

Beginning with the pioneering work of Friedman and Kuznets, published atthe end of the Second World War (Friedman and Kuznets, 1945), most attentionhas been given to regimes governing the professions (for a valuable survey ofstudies relating to the medical professions, see Gravelle, 1985). Typically theregimes involve SRAs having the power to issue licences and therefore theability to restrict entry (see Kessel, 1970, for a study on how control by the SRAwas used for the benefit of members of the profession). The prediction that thiswill enable incumbent practitioners to earn rents is difficult to substantiatebecause it is necessary to disentangle supra-competitive profits from higherearnings which represent legitimate compensation for higher educational costsand greater responsibilities. Nevertheless when such variables are controlled for,researchers have found strong evidence of rents being earned by eyeglasssuppliers (Benham and Benham, 1975), dry cleaners (Plott, 1965), lawyers (Holen,1965; Lees, 1966; Domberger and Sherr, 1989; Curran, 1993) and dentists (Holen,1965; Shepard, 1978; Wilson, 1987). Studies on other medical professions (Holen,1965; White, 1979; Wilson, 1987; Curran, 1993) and architects (Button andFleming, 1992) are less conclusive. In a general study, Maurizi found that therewas a significant correlation between licensing regimes and monetary returns forabout half of the systems examined (Maurizi, 1974). Exacerbation of shortagesin the supply of practitioners (Hogan, 1979), maldistribution of such supply(Holen, 1965; Boulier, 1980; Pashigian, 1980) and poorer quality of service(Carroll and Gaston, 1979) are other welfare effects found to have resulted fromlicensing regimes.

Ongoing professional standards, established by SRAs, have also enabledthem to protect anti-competitive practices: for example, fee regulation andrestrictions on advertising which limit price competition (Benham, 1972; Officeof Fair Trading, 1982; Domberger and Sherr, 1989; Van den Bergh and Faure,1991); and "professional ethics" which serve the well-being of practitionersrather than their clients and mask prohibitions on cost-saving innovation(Gravelle, 1985; Trautwein and Rönnau, 1993).

6. Competitive Self-Regulation

The above discussion suggests that, on certain key assumptions, systems ofspontaneous private legal ordering can generate efficient outcomes but thatstate-delegated systems of self-regulation can lead to adverse welfare effects.The crucial factor which distinguishes the two systems is that the act of statedelegation normally involves conferring on the SRA a monopoly power tolegally constrain supply in the relevant market.

We have seen (Baggott and Harrison, 1986; Pirrong, 1985) that the threat ofstate intervention may, to some extent, mitigate the harmful effects ofmonopolization. A useful analogy may here be drawn with the theory ofcontestable markets which indicates that, under certain conditions, efficientpricing and production can be forced upon a monopolistic supplier by the threatof competition, just as much as by actual competition (Baumol et al, 1982). Butthe necessary conditions - notably the ability of the entrant costlessly to leavethe market - are rarely met in practice (Waterson, 1988). Similarly, on costgrounds, SRAs may not regard the threat of state intervention as credible.

An alternative solution to the problem presents itself: if the principalobjection to SRAs is that they are able to exploit their monopolistic control ofsupply so as to enable practitioners to earn rents, then why not force SRAs tocompete with one another, so that the rents will be eliminated (Kay and Vickers,1990; Ogus, 1995)? Such competition would obviously prevent SRAs creatingbarriers to entry. But it should also constrain SRAs to formulate standards whichmeet consumer preferences at lowest cost since, assuming consumers haveadequate information to make appropriate comparisons, they will choose thecombination of price and self-regulatory standards which most closelycorresponds to those preferences.

Competition of this kind is inherent in systems of private ordering: supplierscompete to attract consumers by the quality (as well as the price) of theirproducts and services. Quality is, to some extent at least, a consequence ofstandards and other forms of control imposed internally by the management ofa firm. The standards may reflect public regulatory requirements but more oftenthey are voluntary, representing the firm's response to assumed consumerdemand and, in some cases, incorporating industry-wide practices. To signal toconsumers the relationship between standards and quality, some form ofvoluntary accreditation or certification can be used (Bardach and Kagan, 1982).Suppliers who aim at different quality standards, and have difficulty incommunicating that fact to consumers, will have an incentive to establish a rivalcertification system. Competing self-regulatory regimes may thus emerge.

Thus envisaged, competitive self-regulation is, in essence, no different fromcompetition between national public regulatory regimes (Bratton et al, 1997). Ifthere is mutual recognition of national standards and freedom of trade,consumers can choose between the different quality standards imposed by thenational systems in accordance with their own preferences. Provided that theyare informed as to the relevant national compliance certificate, competitionbetween national regulatory regimes should induce standard-setters to meetthose preferences (Kay and Vickers, 1990).

The policy implication of this analysis is that where the public interestarguments for the state delegating its regulatory powers are strong (see above),it should not grant monopoly power but rather enable two or more SRAs withina given supplier group to formulate alternative regimes (Ogus, 1995; for theeffects of competition between professionals and para-professionals, see Shakedand Sutton, 1981b). Although there is a risk of cartelization, most industries aresufficiently heterogeneous for this purpose. An alternative is to retain themonopoly but force different SRAs to compete ex ante to acquire the right tocontrol supply by self-regulation. Competing applicants would be required toinclude their self-regulatory rules as part of the bid; and, as with other publicfranchises (Demsetz, 1968), the competition should force applicants to offerregimes consistent with the public interest.

There are, nevertheless, potential problems with these solutions. Consumers- more precisely marginal consumers (Schwartz and Wilde, 1979) - must be ableto attribute general quality characteristics to certificates generated by thecompeting self-regulatory regimes; otherwise there will be a "race to the bottom"(Akerlof, 1970). Secondly, there must be no significant externalities arising fromtheir purchasing behaviour. The importance of information asymmetries andexternalities and, in relation to the franchising solution, the need to scrutinizecompeting bids suggest that in many areas some residual form of stateintervention will be optimal. It remains to consider this issue more generally.

7. Mixed Systems

As was indicated in the discussion of the nature of self-regulation, there is awide range of possible institutional arrangements between public regulation onthe one hand and pure private ordering on the other. In an effort to realize manyof the benefits of self-regulation but controlling the costs which result from SRArent-seeking, some jurisdictions have adopted what has been referred to as"coregulation" (Grabosky and Braithwaite, 1986): SRAs regulate with someoversight or ratification by government, or officials representing the publicinterest (see for example Page, 1987). The main problem is that of informationalasymmetry between the public agency and the SRA. The latter can withhold vitalinformation unless there is confidence that it will be used to reach regulatorysolutions which favour its members (Quirk, 1981). Typically, also, the SRAretains monopolistic control of enforcement.

In an important contribution to the literature, Ayres and Braithwaite argue,instead, for "enforced self-regulation" (Ayres and Braithwaite, 1992; see alsoBraithwaite, 1982). Under this model, a public agency negotiates with individualfirms regulations that are particularized to each firm, with the threat of animposition of less tailored standards if it fails to cooperate. While the firm maythus formulate the rules, they are enforced by the public agency. Theadvantages are clear: as with other privately ordered systems, the rules aretailored to match the firm's circumstances and are less costly to adapt; there areincentives to identify least-cost solutions, which should encourage regulatoryinnovation; and firms would be more committed to the rules than if imposedexternally. Moreover, the very fact of individualization avoids the monopolyproblem. On the other hand, the administrative costs would be high. Thissuggests that, for such a regime to be cost-effective, the firm must be large andthe activity to be regulated must be one in which efficiency requires significantlydifferentiated standards (Latin, 1985).

Acknowledgements

I acknowledge with gratitude the very helpful comments of two anonymousreferees.

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© Copyright 1997 Anthony Ogus