By focusing on regulatory unreasonableness, Bardach taught us all something important about the rule of law.
Eugene Bardach, who died in April of this year at the age of 86, was admired widely as an inspiring teacher of policy analysis. His book, A Practical Guide for Policy Analysis: The Eightfold Path to More Effective Problem Solving, is used throughout this country in schools of public policy and administration. What I would like to recount in this tribute essay, however, are Gene Bardach’s memorable contributions to the academic study of regulatory enforcement and compliance.
I met Gene when I was a still-untenured professor of political science at the University of California, Berkeley. He was already a key fixture at the Goldman School of Public Policy across the campus. I was pleased when, in 1978, he invited me to join him in an empirical study of regulatory enforcement—a subject which then was only sparsely inhabited academic territory. Not that it was sparsely inhabited by governmental regulators. The preceding decade, Gene pointed out, had seen the enactment of a wave of federal health, safety, and environmental laws and implementing regulations. Swarms of regulatory inspectors, state as well as federal, were knocking on the doors of business firms of many kinds, taking samples of effluents, asking to walk through factory floors, inspecting nursing homes and coal mines, demanding new kinds of record-keeping and reporting, and issuing citations for failure to comply fully with the growing web of new regulations. These inspectors embodied a newly insistent and intrusive relationship between governments and private business firms.
Gene’s prior empirical research was on how politics influenced the implementation of public policies. Now, he wanted to learn how these regulatory inspectorates actually operated, how and why they varied, and how these differences affected the achievement of regulatory objectives. To discern variation, he proposed that we study as many different regulatory programs as possible. And to discern how these programs really operated and what they achieved, he argued that we should study not only the enforcers but also their targets, learning how regulated businesspeople perceived and responded to those inspection systems.
The study we ultimately completed was titled, Going by the Book: The Problem of Regulatory Unreasonableness, published in 1982 and reprinted in 2002. In preparing the first edition, there was scarcely a paragraph in the book that was not written by both of us, following revision after revision. But one of the exceptions—the book’s very first paragraph—was purely Bardachian. To re-read it is a reminder to me of his deeply learned and thoughtful mind:
The rule of law was invented to restrain the willfulness of kings and nobles. In modern republican states, it is invoked by citizens to restrain all manner of public institutions. … But the restraints of the rule of law are willful in their own way. They dictate that all statutes and regulations be applied uniformly, consistently, and fairly. The realm of human activity in which these rules are applied, however, is diverse and complex. It is not always possible to successfully connect the … requirements of law to the variety of experience. Yet government must govern, and if it cannot do so by forging perfect connections to the society it governs, then it will make do with imperfect connections.
With that opening sentence—“The rule of law was invented to restrain the willfulness of kings and nobles”—Gene stressed that a book about the mundane subject of regulatory enforcement is also, necessarily, a book about the rule of law and the restraint of power.
But the paragraph goes on to point out that the tools the rule of law uses to constrain the state’s regulatory power—generally stated rules—are inevitably clumsy, overinclusive, slightly mismatched to the diversity of the phenomena they are intended to control. The result, as Gene described it in the book’s second paragraph, was as follows: “Uniform regulations, even those that are justifiable in the general run of cases, inevitably appear to be unreasonable in many particular cases.”
That’s the main topic of the book—“regulatory unreasonableness”—and it was also Gene’s key insight about American regulation. The persistence of regulatory unreasonableness helps explain why businesspeople subjected to regulatory rules find regulation deeply annoying. And that has huge implications for the politics of regulation.
In that regard, here is one more passage from Chapter 1 that I am sure Gene alone wrote, for it reflects the creativity and subtlety of his thought:
Everyone who has ever been subjected to regulation, whether at the hands of a welfare eligibility evaluator, an affirmative action compliance specialist, or a county sanitation officer, has a stock of horror stories about particular regulatory encounters. These stories enter into the stream of conversation and ultimately into the cultural consciousness that defines and measures the evils of regulation. Horror stories may not represent the modal pattern of regulatory agency activity, and may in fact mask good that is achieved, but they do reflect a genuine truth about the inevitability and vexatiousness of regulatory unreasonableness.
But is regulatory unreasonableness really inevitable? Much of Going by the Book, Gene insisted, would show how regulatory unreasonableness might be minimized. Most prominent in that regard is the book’s chapter on “The Good Inspector,” someone who injects flexibility and cooperation-seeking into the enforcement process. Our empirical research revealed numerous examples. When “good inspectors” encountered recalcitrant enterprises, they would apply regulations strictly, readily employing legal penalties and mandatory remedial orders. Conversely, when encountering firms that generally were cooperative, they would teach, persuade, or prod the company to fix violations and improve systems for preventing them. Good inspectors would trade more time for cooperation in making preventive changes. Some agencies had institutionalized an office culture that encouraged this flexible mode of rule-application.
Institutionalizing flexible enforcement, of course, is challenging and costly. We were told it requires constant investment in recruitment and training, in increasing enforcement officials’ technical competence and professionalism. Not all the agencies we studied could do so. Agency officials complained about restrictive, discretion-limiting statutes, budgetary restrictions, or political oversight pressures to report higher numbers of violations cited and penalties imposed. They were pushed into unreasonableness. Yet the “good inspector” is a widely held ideal, and it is pursued by many American agencies. In many other economically advanced democracies, subsequent research has revealed, a flexible enforcement style is common practice. Regulatory unreasonableness, it seems, is more a constant tendency and frequent companion of detailed regulatory rules, but one that regulators, when granted discretion and treated as professionals, can modulate.
The rule of law is not the culprit inevitably causing unreasonableness, Gene (and I) ultimately argued. That is because the rule of law is more than the rigid application of prescriptive legal rules. It includes attention to the consequences of legal decisions in light of the principles and policy goals implicit in the rules. That is a demanding trick to pull off, often precluded or not even tried, but it remains an essential element of the contemporary ideal of regulatory legality. We can thank Gene Bardach for helping us realize or remember that.
This essay is part of a series titled, “Bardach’s Path to a Better World.”
