Drafting and modeling of regulations: Is it being done backwards?

Abstract

The performance modeling of regulations is a relatively recent innovation. However, as regulators in many domains increasingly look to move from prescriptive regulations towards more outcome-based regulations, the use of performance modeling will become more common place. The major difference of outcome-based regulations over prescriptive regulations is that the main interest lies in specifying clear objectives of the regulations and measuring whether regulated parties achieve these objectives, while leaving much freedom to the regulated party on how to meet these objectives. Recently, we have found that the use of performance modeling provides benefits such as revealing inconsistencies and lack of clarity in existing regulatory language. In this paper, we report on these experiences, summarize guidelines for the modeling of regulations, and examine whether the current drafting processes for regulations are optimized to take advantage of these additional benefits. We explore the advantages and disadvantages of various ways of augmenting the current approach with goal-oriented modeling of regulations. Based on our experience with Aviation Security regulations, we believe it is time for modeling to play a new role in helping to guide the drafting of regulations.