Regulatory Excellence and the Networked Governance of Regulatory Studies

Prof. Coglianese at an international expert forum on regulatory excellence, held at Penn Law in March 2015.
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Prevention of such catastrophe requires adept networking of regulatory scholarship, like that demonstrated in an important new book.

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An important new book has landed: Achieving Regulatory Excellence.

This book, edited by University of Pennsylvania Law School Professor and The Regulatory Review‘s founder, Cary Coglianese, poses a compelling question: “What defines an excellent regulator?”

I read the book as showing that smarter governance requires regulatory capacity, leadership, and robust networking skills from innovators in regulatory design. Without such leadership, the future for humankind would be exceedingly bleak. Economies and societies would unravel, increasingly frequent financial crises would lead to massive unemployment, nuclear and chemical weapons proliferation would annihilate millions, and the kind of pollution we see hanging over Beijing would wreak more destruction than it already does.

Prevention of such catastrophe requires adept networking of regulatory scholarship in universities. Yes, what we as scholars do is that important—even if it does not seem so in the day-to-day humdrum of scholarly life. Put another way, preventing crises with grave implications for humankind calls for leaders like Coglianese, who, in his book, brings together a rich collection of scholars who provide important insights on regulatory excellence.

Coglianese’s capacity for networking extends well beyond Achieving Regulatory Excellence, however. Between 1994 and 2006, Coglianese was at the Kennedy School at Harvard University. Even among the institution’s many distinguished regulatory scholars, Coglianese was a standout. While there, he became the leading regulatory studies networker, serving as the founding chair of the Regulatory Policy Program.

In 2006, Coglianese accepted an offer to build another regulatory policy program, this time at the at the University of Pennsylvania. And in carrying out this charge, what he has built over the years has been nothing short of extraordinary: he not only founded the Penn Program on Regulation (PPR)—for which he currently serves as the Director—but he also founded, and is presently the faculty advisor to, PPR’s flagship publication, The Regulatory Review. Furthermore, he created, a site dedicated to the use of information technology in the rulemaking process. The site serves as a valuable resource, making research papers, policy documents, and conference materials accessible to those interested in e-rulemaking. Put simply, Coglianese has made distinctive contributions of a kind one would expect of a scholar with a networked governance imagination.

Many of the contributors to Achieving Regulatory Excellence, including Coglianese himself, have been visitors to the School of Regulation and Global Governance at Australian National University (RegNet). In fact, Coglianese inspired two events on regulatory excellence at RegNet just last year.

Coglianese’s visit to RegNet is hardly the only one in which we have crossed paths—and in which his stellar networking has provided indispensable value. When David Levi-Faur—co-founder of the European Consortium for Political Research standing group on regulatory governance, along with Jacint Jordana—worked at RegNet, he pitched the idea of founding a new journal, Regulation & Governance. I opined to Levi-Faur that we should invite Coglianese to be our founding co-editor. Why?

Because doing so would make possible an important coalescence of networks. It would bring together Levi-Faur and Jacint Jordana’s European networking; the networking of other Euro-RegNetters like Colin Scott and Imelda Maher; Coglianese’s consummate North American Law and Society networking, stemming from Coglianese’s role as the founder of the Law and Society Association’s international collaborative research network on regulatory governance; and RegNet’s Asia-Pacific networking. To be clear, this was not intended to be a journal of these three networks, but it has in fact succeeded mightily as a journal because it is grounded in an understanding provided by each of these three networks.

People sometimes say that RegNet is not truly a network, but rather, that it is simply another school in a university building, and one that just happens to be called the School of Regulation and Global Governance. But the fact remains that everyone knows the school as RegNet. And as the success of Regulation & Governance and PPR have shown, what is crucial to the networked character of such enterprises is not the bodies in the building, but the networked governance imaginaries in the heads of those bodies. If the goal is to have a networked scholarly accomplishment, network structures are not the critical component. Instead, network mentalities are the critical component, and network nodes are critical yeast to making the network rise.

One of the upshots of an enterprise that has a network mentality is that faculty who have vibrant network imaginaries are appointed and promoted. By way of illustration, when RegNet appointed Sharon Friel as Director, a regulation scholar asked why we appointed her. Why, we were asked, did RegNet not appoint so-and-so, who publishes in “our regulatory journals”?

One reason RegNet appointed Friel was that she had worked in the field of regulatory governance without having formed an identity as a regulation and governance scholar. Friel’s appointment gave us an opportunity to build a completely new bridge—specifically one to the areas of health, food, and health equity regulation—and to infuse RegNet with the fresh blood of a clutch of her post-doctoral scholars. And what a bridge she was capable of forging: we counted from her CV that she had published works with over 100 co-authors, one of whom was a Nobel Laureate.

As our decision to appoint Friel shows, the lifetime quantum of a scholar’s co-authors is a strong quantitative performance indicator of the networked contribution of that scholar. And it is certainly a stronger indicator than whether that scholar is embedded in some formal network structure. Loners may have a large niche in the academy, but if one’s aim is to build a networked form of excellence, loners are duds for that vision.

At RegNet, for example, we have had networkers like Liz Bluff, Richard Johnstone, and Neil Gunningham build The National Research Centre for OHS Regulation, which has a formidable membership list of scholars and practitioners who have been meeting regularly in places like the RegNet building for 16 years. Similarly, Australian National University’s Centre for Restorative Justice had significant input in the founding of the Canberra Restorative Community, a network of local restorative champions; the International Restorative Learning Community, of which Canberra is a partner; and other international networks, including the International Institute for Restorative Practices, the Asia-Pacific Forum for Restorative Justice, and Restorative Practices International.

Such nodes and networks rarely persist in the longue durée of intellectual history, however. That matters little. What matters, instead, is that their networked imaginations persist. In fact, I have argued that it is better to build tents of regulatory studies than buildings or nodes. My reasoning is that ossification is a danger, and the process of continuously collapsing and building new networked tents is more valuable than enduring structures.

I conclude my homage to Coglianese—and his many contributions to this networked governance mentality of regulatory studies—with illustrations from the two RegNet members’ contributions to Achieving Regulatory Excellence. One contribution comes from Neil Gunningham, whose essay provides different strategies for engaging effectively under different circumstances, including facilitating, catalyzing, and commandeering the participation of second and third parties as surrogate regulators, along with regulators themselves constantly engaging in self-evaluation, learning, and adaptation. Gunningham considers several approaches for his fertile mix, including advice and persuasion, deterrence, responsive regulation, risk-based regulation, smart regulation, meta-regulation, and criteria strategies.

The second RegNet contribution to Achieving Regulatory Excellence, which I authored, focuses on responsive excellence. In it, I argue that contemporary debates over regulation typically possess excessively narrow thinking about responsiveness to the regulator’s risk environment. Responsiveness to risk, I contend, is far less important to regulatory excellence than responsiveness to opportunities. Excellent regulators scan for cases that offer strategic macro opportunities for creating public value by transforming an entire industry or an entire economy. Put another way, risk management goes to the basics of regulation—but seizing opportunities for transformation goes to the heart of regulatory excellence.

Transformation, of course, depends on diffusion across networks, which is what makes the cultivation of the kinds of scholarly networked relationships I have been discussing of paramount importance. Regulatory excellence, in the end, depends on networked excellence—and it is for that fundamental reason that the bringing together of so many scholars’ ideas in Achieving Regulatory Excellence is a singularly important achievement.

John Braithwaite

John Braithwaite is a Distinguished Professor and Founder of the Regulatory Institutions Network (RegNet) at the Australian National University. Braithwaite leads a comparative peacebuilding project and works on business regulation and the crime problem.