Code, control, and choice: why East is East and West is West

Abstract

Smart regulators know that traditional command and control interventions, however tempting to politicians, are not always an effective or efficient form of response; they know that the criminal law tends to do better at defining crime into existence rather than defining it out; they know that private law remedies are of limited impact; and they know that public law control exercised by agency licensing or negotiation is open to the twin charges of being too soft or being too tough. Even smarter regulators know that they can sometimes achieve the desired regulatory effect by relying vicariously on non-governmental pressure (whether in the form of self-regulation or co-regulation by or with business or the professions, pressure exerted by consumers, the activities of pressure groups, and so on) or by relying on market mechanisms; in addition, they know that careful consideration needs to be given to selecting the optimal mix of various regulatory instruments.