Consensus versus Incentives: A Skeptical Look at Regulatory Negotiation

Abstract

The National Performance Review (NPR) Report is a wideranging document that incorporates numerous proposals to streamline government and improve its efficiency. A portion of the report addresses regulatory reform, and Improving Regulatory Systems, an accompanying document, focuses solely on this topic. Most of the regulatory reform proposals have been discussed in the administrative law and policy community for several years. The influence of the Administrative Conference and the Carnegie Commission is evident. Some recommendations are designed to improve the efficiency of public regulation. Incentive-based systems, for example, can make government policies more cost-effective. Other recommendations are disembodied law reforms, espoused without much concern for the substantive problems to which they might apply. This Comment contrasts one of these recommendations-regulatory negotiation-with incentive-based proposals. I wish to demonstrate that regulatory negotiation (reg neg) has been oversold as a reform and to argue that incentive-based systems, which obviate the need for certain types of rulemaking, deserve greater emphasis. Improving Regulatory Systems recommends increased use of both negotiation and incentives but does not address their interrelationship.