Short Introduction by the Author

This book has its origin in a conviction that conventional approaches to public law and administrative law have failed to address some key issues pertaining to the regulation of industrial and commercial behaviour. Those nurtured within the British, particularly the Diceyan, tradition are obsessed with the institutional dimension of public law: how the powers to control behaviour are allocated between different public and semi-public authorities; and how the exercise of such powers may be constrained by principles of accountability. But public law is not only about preventing the abuse of power; it is also about selecting legal forms which can best achieve the instrumental goals of collective choice. If, for example, the agreed objective is to limit industrial pollution, to achieve certain standards of safety in our factories, or to control the prices of the privatized utilities, we need critically to compare the legal instruments which are available or can be devised.

Hitherto we have tended to assume that this task is not for a `public' lawyer, but rather for a specialist in environmental law, health and safety law, or utilities law. My perception is that specialism of this kind hinders, rather than facilitates, the evaluative analysis of the legal framework which is required. A more complete understanding of the legal forms is acquired only when specific instruments are related to more general goals and thus cross the boundaries between different regulatory areas.

The aim of this book is, then, to classify and explain regulatory forms and to evaluate their capacity and record of achievement in meeting collective goals. Clearly, a theoretical framework is necessary to analyse the goals and to provide some criteria for evaluation. The framework that I have adopted has been drawn predominantly, but not exclusively, from economics. In the last two decades, economics has made a major contribution to the study of private law; its impact on public law scholarship has been much less marked, particularly this side of the Atlantic. In attempting to redress the balance, I have been much influenced by the rich (and sometimes controversial) American literature which adopts this approach. However, while the modes of analysis formulated by American authors may, without undue difficulty, be applied to British regulation, the conclusions which they reach have to be treated with considerable caution, since American regulatory institutions, processes, and styles are often very different from their British counterparts.

Table of Contents

Chapter 1: Introduction

   1. Nature of Regulation
   2. Theories of Regulation and Economic Reasoning
   3. Scope and Form of Regulation
   4. Historical Development of Regulation in Britain

Chapter 2: The Context of Regulation: The Market and Private Law

   1. Co-operation and Transactions
   2. Reducing Transaction Costs
   3. Third Party Effects
   4. Competition
   5. Assumptions and Limitations of the Market System
   6. Conclusions

Chapter 3: Public Interest Grounds for Regulation

   1. Introduction
   2. Economic Goals
   3. Non-Economic Goals

Chapter 4: Regulation and the Pursuit of Private Interest

   1. Introduction
   2. Public Choice Theory: The Main Ideas
   3. Public Choice Theory: Forms of Political Trade
   4. Private Interest Theories of Regulation

Chapter 5: Use of the Criminal Law

   1. Introduction
   2. Legal Framework for Regulatory Offences
   3. Enforcement and Compliance
   4. Extending the Scope of Criminal Liability

Chapter 6: Institutions and Accountability

   1. Jurisdictional Level of Regulatory Law
   2. Delegation of Regulatory Rule-Making
   3. Self-Regulatory Agencies
   4. Accountability of Regulators

Chapter 7: Information Regulation

   1. Justifications and Explanations
   2. Mandatory Price Disclosure
   3. Quantity Disclosure
   4. Identity and Quality Disclosure
   5. Controls on Misleading Information

Chapter 8: Standards: General

   1. Nature of Standards
   2. An Idealized Public Interest Model for Standard-Setting
   3. Cost-Effectiveness Models for Standard-Setting
   4. Mandatory Cost-Benefit or Cost-Effectiveness
   5. Principles of Standard-Setting
   6. Private Interest Considerations
   7. The Impact of EC Law

9. Standards: Specific Regulatory Regimes

   1. Occupational Health and Safety
   2. Consumer Product Quality and Safety: General
   3. Consumer Product Quality and Safety: Food
   4. Consumer Product Quality and Safety: Other
   5. Environmental Pollution Control

Chapter 10: Prior Approval

   1. Introduction
   2. Licensing of Professional Occupations
   3. Licensing of Other Occupations and Commercial
   4. Licensing of Products
   5. Licensing of Land Use

Chapter 11: Economic Instruments

   1. Introduction
   2. Forms of Economic Instruments
   3. Evaluation
   4. Political and Private Interest Considerations

Chapter 12: Private Regulation

   1. Alienable Rights
   2. Inalienable Rights
   3. Judicial Role
   4. Rationalization

Chapter 13: Public Ownership

   4.1. Introduction
   4.2. Public Interest Justifications for Public Ownership
   4.3. Private Interest Considerations
   4.4. Lega1 Structure and Productive Efficiency
   4.5. Allocative Efficiency
   4.6. Privatization

Chapter 14: Price Controls

   4. 1. Introduction
   4.2. Price Controls for Distributional Purposes
   4.3. Counter-Inflation Measures
   4.4. Price Controls in Monopolistic Markets

Chapter 15: Public Franchise Allocation

   4.1. Introduction
   4.2. Justificatioris and Explanations for Public Franchising
   4.3. Criteria for Allocating Public Franchises
   4.4. The Allocation Process and Competition
   4.5. The Franchise Contract
   4.6. Conclusions

Chapter 16: The Future of Regulation

   4.1. The Agenda for Regulatory Reform
   4.2. Towards `Rational' Social Regulation?
   4.3. Towards `Rational' Economic Regulation?

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