Rewards and Regulation

Source: (2002) Journal of Law and Society. 29(1): 12-26.

Rewards are less useful in regulation than they are in markets. Firms respond to market incentives because most markets are contestable. In markets that are not oligopolies it makes more sense to adopt a competitor mentality than a fixer mentality. Regulatory power in contrast is mostly not contestable. Firms are therefore more likely to adopt a fixer or game-playing mentality. Reactance to regulatory control through rewards is likely to be greater than reactance to market discipline. If a responsive regulatory pyramid is a good strategy for optimizing compliance, then punishment is more useful in regulation than reward. Reward at the middle of a regulatory pyramid brings about a moral hazard problem. Under certain limited conditions reward can be useful at the base of a regulatory pyramid. These conditions are transparent, easy measurement of the performance to be rewarded, an imbalance of power such that the regulatee is weak in comparison to the regulator, and an absence of weapons of the weak for subverting a regulatory system to which the weak are subject. Absent these conditions, and we cannot expect the undoubted efficiency advantage of a market where regulatory outcomes can be traded so that they are secured where the cost of doing so is least. While, in general, punishments are more useful to regulators than monetary rewards, informal rewards (praise, letters of recognition) are rather consistently useful in securing compliance. Author’s abstract.