Anthony Ogus

Regulatory Institutions And Structures

This article presents a legal perspective on regulatory institutions, procedures and processes. Analysis of legal instruments examines justifications for regulatory interventions, and considers the inadequacies of private law remedies to instances of market failure (such as monopolies, inadequate or asymmetric information, externalities and co-ordination problems). A distinction is drawn between social and economic regulation: the former deals with such matters as health and safety, and environmental and consumer protection; and the latter is needed where there is insufficient competition. Instruments of social regulation include prior approval, mandatory standards and information disclosure. A range of instruments of economic regulation is also assessed, including competition law, public ownership, price and quality regulation, and competitive public franchising. Analysis of regulatory processes focuses on regulatory rule-making, delegated regulation and self-regulation. Particular weight is given to different forms of accountability-financial, procedural and substantive-which draws attention to the significance of the public interest dimension of regulatory systems. Copyright 2002 CIRIEC.

A Strategic Interpretation of Legal Transplants

In this paper we provide a strategic explanation for the spontaneous convergence of legal rules that nevertheless, in many instances, falls short of unification across jurisdictions. We identify a free‐riding problem and discuss its implications for legal integration. We argue that countries hesitate to adapt their laws to those of another jurisdiction because they hope to free ride on efforts toward convergence. Unification (by transplant) and harmonization (by convention) of legal rules emerge as obvious corrective interventions to a coordination failure, thus solving the free‐riding problem. However, unification and harmonization could also be serious policy mistakes either because convergence is absent owing to very high costs of importing and adjustment or owing to agency costs.

The Investigation and Prosecution of Regulatory Offences: Is There an Economic Case for Integration?

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Regulatory Arrangements in Developing Countries

Hans-Bernd Schafer has made such a major contribution to the development of law and economics in Europe, and in so many different respects, that it is difficult to single out specific achievements. However, what has struck me more than anything else has been his capacity, as an economist, to enter into, and appreciate the nuances of, Rechtskultur. This is evident not only in such important studies as that of liability for pure economic loss and the relationship between tortious and contractual liability (Schafer, 2002a and Dari-Mattiacci and Schafer, 2007), but also in his highly insightful work on law and development. In “Legal Rules and Standards” (Schafer, 2002b), he sheds new light on a familiar legal topic, showing how the special features of human capital resources in less developed countries (LDCs) may render less efficient the solutions to the dilemma between generality and specificity typically offered in Western legal scholarship.

Shifts in Governance for Compensation to Damage: A Framework for Analysis

The purpose of the “shifts in governance” project is to examine, from a comparative perspective, the changing relationships between private law and public law systems of compensation, concentrating on some key areas where accidents have been prevalent and compensation systems have been most developed. The task I have set myself in this paper is not to examine trends as they have occurred in different jurisdictions, but rather to attempt to provide a theoretical framework for analysing and understanding such trends.

The Relationship Between Regulation and Tort Law: Goals and Strategies

I have been asked to contribute to the research project on the relationship between tort and regulatory law by providing a paper on the “regulatory aspects from a common law perspective”. The topic is a comfortably broad one and I interpret my task as attempting to answer three principal questions: • How do the goals of regulatory law differ from those of tort law? • To the extent that they share goals, what are the advantages and disadvantages of the two legal instruments in achieving those goals? • How should overlaps and divergences between the two instruments, as regards substantive content, be dealt with? These questions lead me also to the subtitle of my paper “goals and strategies”.

The Directive on the Landfill of Waste: Two Forms of Appraisal

This chapter discusses the development of a European Communty (EC) Directive intended to reduce the environmental damage caused by the disposal of waste by landfill, a regulatory proposal which the UK government initially supported but later opposed. The assessment of regulatory costs has two manifestations here: the UK’s own Compliance Cost Assessment (CCA), produced by the Department of Environment (DoE) in 1994, and a cost-benefit analysis (CBA) produced for the Environment Directorate (DGXI) of the European Commission. Although both documents highlight interesting issues about the estimation of costs of environmental regulation, the CBA also places these within a European context and raises questions about the distribution of costs and benefits.

Enforcing Intellectual Property Rights: The Relevance of Compliance Cost Assessment

This chapter considers the case of a European Community (EC) Regulation agreed by the Council of Ministers in 19941 which was intended to provide an improved framework of protection for holders of intellectual property rights (IPR) against counterfeit and pirated goods. The immediate issue would appear to be that, since Member States have no choice over the form of implementation of a Regulation, the role for Compliance Cost Assessment (CCA) within the domestic context is limited to that of providing information on a set of compliance costs which cannot directly be controlled. Unlike an EC Directive for which Member States may have some flexibility in terms of how new provisions are incorporated into the existing legislative framework, an EC Regulation applies directly.2 However, as we demonstrate in this chapter, there is a more fundamental problem here with the very notion of compliance costs in relation to IPR.

The Deregulation Initiative and Compliance Cost Assessment

The requirement that civil servants undertake Compliance Cost Assessment (CCA) dates, in Britain, from 1985 and was explicitly linked to the Conservative government policy of deregulation (Cmnd 9571, 1985). It is therefore necessary to precede our account of the evolving use and nature of the CCA requirement with a discussion of the Deregulation Initiative and its role in government policy.

Reviewing Environmental Protection Legislation

The regulation of business activities to control and reduce environmental pollution exemplifies the potential conflict which can arise between social and private goals. This case study considers the amendment of a broad-ranging and complex framework of legislation introduced by the Environmental Protection Act 1990 to control the emission of polluting substances to air, water and soil. The system is based on the requirement for prior authorisations for controlled processes and substances. The details of what was an innovative approach to environmental protection were set out in implementing regulations in 19911 and in a series of guidance notes issued by the Department of Environment (DoE). Because it covers a large number of activities and, given that pollution creating and abating technology and attitudes to pollution are not static, the legislation requires regular review and updating.