Paper by Jonathan Kolieb: “Originally published over two decades ago, ‘responsive regulation’ and its associated regulatory pyramid have become touchstones in the contemporary study and practice of regulation. Influential ideas and theories about regulation and governance have been developed in the intervening years, yet responsive regulation’s simple pyramidal model continues to resonate with policy-makers and scholars alike. This article seeks to advance the vision and utility of responsive regulation, by responding to several key drawbacks of the original design and by offering an update to the pyramidal model of regulation that lies at the centre of the theory. It argues for a ‘regulatory diamond’ as a strengthened, renewed model for responsive regulation. Rooted within the responsive regulation literature, the regulatory diamond integrates into the one schema both ‘compliance regulation’ and ‘aspirational regulation’, thereby offering a more cohesive representation of the broad conception of regulation that underpins responsive regulation theory, and the limited but vital role of law within it….(More)”
New frontiers in social innovation research
Geoff Mulgan: “Nesta has published a new book with Palgrave which contains an introduction by me and many important chapters from leading academics around the world. I hope that many people will read it, and think about it, because it challenges, in a highly constructive way, many of the rather tired assumptions of the London media/political elite of both left and right.
The essay is by Roberto Mangabeira Unger, perhaps the world’s most creative and important contemporary intellectual. He is Professor of Law at Harvard (where he taught Obama); a philosopher and political theorist; author of one of the most interesting recent books on religion; co-author of an equally ground-breaking recent book on theoretical physics; and serves as strategy minister in the Brazilian government.
His argument is that a radically different way of thinking about politics, government and social change is emerging, which has either not been noticed by many political leaders, or misinterpreted. The essence of the argument is that practice is moving faster than theory; that systematic experimentation is a faster way to solve problems than clever authorship of pamphlets, white papers and plans; and that societies have the potential to be far more active agents of their own future than we assume.
The argument has implications for many fields. One is think-tanks. Twenty years ago I set up a think-tank, Demos. At that time the dominant model for policy making was to bring together some clever people in a capital city to write pamphlets, white papers and then laws. In the 1950s to 1970s a primary role was played by professors in universities, or royal commissions. Then it shifted to think-tanks. Sometimes teams within governments played a similar role – and I oversaw several of these, including the Strategy Unit in government. All saw policy as an essentially paper-based process, involving a linear transmission from abstract theories and analyses to practical implementation.
There’s still an important role to be played by think-tanks. But an opposite approach has now become common, and is promoted by Unger. In this approach, practice precedes theory. Experiment in the real world drives the development of new ideas – in business, civil society, and on the edges of the public sector. Learning by doing complements, and often leads analysis. The role of the academics and think-tanks shifts from inventing ideas to making sense of what’s emerging, and generalising it. Policies don’t try to specify every detail but rather set out broad directions and then enable a process of experiment and discovery.
As Unger shows, this approach has profound philosophical roots (reaching back to the 19th century pragmatists and beyond), and profound political implications (it’s almost opposite to the classic Marxist view, later adopted by the neoliberal right, in which intellectuals define solutions in theory which are then translated into practice). It also has profound implications for civil society – which he argues should adopt a maximalist rather than a minimalist view of social innovation.
The Unger approach doesn’t work for everything – for example, constitutional reform. But it is a superior method for improving most of the fields where governments have power – from welfare and health, to education and economic policy, and it has worked well for Nesta – evolving new models of healthcare, working with dozens of governments to redesign business policy, testing out new approaches to education.
The several hundred public sector labs and innovation teams around the world – from Chile to China, south Africa to Denmark – share this ethos too, as do many political leaders. Michael Bloomberg has been an exemplar, confident enough to innovate and experiment constantly in his time as New York Mayor. Won Soon Park in Korea is another…..
Unger’s chapter should be required reading for anyone aspiring to play a role in 21st century politics. You don’t have to agree with what he says. But you do need to work out where you disagree and why….(New Frontiers in Social Innovation Research)
Meeting the Challenges of Big Data
Opinion by the European Data Protection Supervisor: “Big data, if done responsibly, can deliver significant benefits and efficiencies for society and individuals not only in health, scientific research, the environment and other specific areas. But there are serious concerns with the actual and potential impact of processing of huge amounts of data on the rights and freedoms of individuals, including their right to privacy. The challenges and risks of big data therefore call for more effective data protection.
Technology should not dictate our values and rights, but neither should promoting innovation and preserving fundamental rights be perceived as incompatible. New business models exploiting new capabilities for the massive collection, instantaneous transmission, combination and reuse of personal information for unforeseen purposes have placed the principles of data protection under new strains, which calls for thorough consideration on how they are applied.
European data protection law has been developed to protect our fundamental rights and values, including our right to privacy. The question is not whether to apply data protection law to big data, but rather how to apply it innovatively in new environments. Our current data protection principles, including transparency, proportionality and purpose limitation, provide the base line we will need to protect more dynamically our fundamental rights in the world of big data. They must, however, be complemented by ‘new’ principles which have developed over the years such as accountability and privacy by design and by default. The EU data protection reform package is expected to strengthen and modernise the regulatory framework .
The EU intends to maximise growth and competitiveness by exploiting big data. But the Digital Single Market cannot uncritically import the data-driven technologies and business models which have become economic mainstream in other areas of the world. Instead it needs to show leadership in developing accountable personal data processing. The internet has evolved in a way that surveillance – tracking people’s behaviour – is considered as the indispensable revenue model for some of the most successful companies. This development calls for critical assessment and search for other options.
In any event, and irrespective of the business models chosen, organisations that process large volumes of personal information must comply with applicable data protection law. The European Data Protection Supervisor (EDPS) believes that responsible and sustainable development of big data must rely on four essential elements:
- organisations must be much more transparent about how they process personal data;
- afford users a higher degree of control over how their data is used;
- design user friendly data protection into their products and services; and;
- become more accountable for what they do….(More)
Open Government: Missing Questions
Vadym Pyrozhenko at Administration & Society: “This article places the Obama administration’s open government initiative within the context of evolution of the U.S. information society. It examines the concept of openness along the three dimensions of Daniel Bell’s social analysis of the postindustrial society: structure, polity, and culture. Four “missing questions” raise the challenge of the compatibility of public service values with the culture of openness, address the right balance between postindustrial information management practices and the capacity of public organizations to accomplish their missions, and ask to reconsider the idea that greater structural openness of public organizations will necessarily increase their democratic legitimacy….(More)”
The Behavioral Divide: A Critique of the Differential Implementation of Behavioral Law and Economics in the US and the EU
Philipp Hacker at the European Review of Contract Law: “A behavioral divide cuts across the Atlantic. Despite the recent surge of behavioral analysis in European academia, a scrutiny of decisions by courts and regulatory agencies in the US and the EU reveals striking differences. While in the US rulings by courts and regulatory agencies progressively take insights from behavioral economics into account, EU courts and agencies still, and even increasingly, cling to the rational actor model. These inverse trends can be uncovered in the interpretation of legal concepts of human agency, ie, of those elements in a legal order which refer, implicitly or explicitly, to a model of rationality of human actors. More particularly, this paper reviews the concepts of consumers and of users, in consumer law and product liability respectively, to underscore the claim of the behavioral divide. Importantly, the divergence between EU and US private law practice calls for a normative evaluation. In the face of empirical uncertainty about the existence, direction and intensity of biases, the most attractive legal concept of human agency is a pluralistic one, assuming the simultaneous presence of boundedly and fully rational actors. In concrete applications, this paper shows that a pluralistic perspective urges a revision of the concept of the reasonable consumer, both in US and EU consumer law. Furthermore, such a view leads to the adoption of a more boundedly rational user concept in product liability. The pluralistic, yet more boundedly rational concepts thus have far-reaching consequences both for private law theory and its concomitant case law….(More)”
The Power of Nudges, for Good and Bad
Richard H. Thaler in the New York Times: “Nudges, small design changes that can markedly affect individual behavior, have been catching on. These techniques rely on insights from behavioral science, and when used ethically, they can be very helpful. But we need to be sure that they aren’t being employed to sway people to make bad decisions that they will later regret.
Whenever I’m asked to autograph a copy of “Nudge,” the book I wrote with Cass Sunstein, the Harvard law professor, I sign it, “Nudge for good.” Unfortunately, that is meant as a plea, not an expectation.
Three principles should guide the use of nudges:
■ All nudging should be transparent and never misleading.
■ It should be as easy as possible to opt out of the nudge, preferably with as little as one mouse click.
■ There should be good reason to believe that the behavior being encouraged will improve the welfare of those being nudged.
As far as I know, the government teams in Britain and the United States that have focused on nudging have followed these guidelines scrupulously. But the private sector is another matter. In this domain, I see much more troubling behavior.
For example, last spring I received an email telling me that the first prominent review of a new book of mine had appeared: It was in The Times of London. Eager to read the review, I clicked on a hyperlink, only to run into a pay wall. Still, I was tempted by an offer to take out a one-month trial subscription for the price of just £1. As both a consumer and producer of newspaper articles, I have no beef with pay walls. But before signing up, I read the fine print. As expected, I would have to provide credit card information and would be automatically enrolled as a subscriber when the trial period expired. The subscription rate would then be £26 (about $40) a month. That wasn’t a concern because I did not intend to become a paying subscriber. I just wanted to read that one article.
But the details turned me off. To cancel, I had to give 15 days’ notice, so the one-month trial offer actually was good for just two weeks. What’s more, I would have to call London, during British business hours, and not on a toll-free number. That was both annoying and worrying. As an absent-minded American professor, I figured there was a good chance I would end up subscribing for several months, and that reading the article would end up costing me at least £100….
These examples are not unusual. Many companies are nudging purely for their own profit and not in customers’ best interests. In a recent column in The New York Times, Robert Shiller called such behavior “phishing.” Mr. Shiller and George Akerlof, both Nobel-winning economists, have written a book on the subject, “Phishing for Phools.”
Some argue that phishing — or evil nudging — is more dangerous in government than in the private sector. The argument is that government is a monopoly with coercive power, while we have more choice in the private sector over which newspapers we read and which airlines we fly.
I think this distinction is overstated. In a democracy, if a government creates bad policies, it can be voted out of office. Competition in the private sector, however, can easily work to encourage phishing rather than stifle it.
One example is the mortgage industry in the early 2000s. Borrowers were encouraged to take out loans that they could not repay when real estate prices fell. Competition did not eliminate this practice, because it was hard for anyone to make money selling the advice “Don’t take that loan.”
As customers, we can help one another by resisting these come-ons. The more we turn down questionable offers like trip insurance and scrutinize “one month” trials, the less incentive companies will have to use such schemes. Conversely, if customers reward firms that act in our best interests, more such outfits will survive and flourish, and the options available to us will improve….(More)
‘Democracy vouchers’
Gregory Krieg at CNN: “Democracy vouchers” could be coming to an election near you. Last week, more than 60% of Seattle voters approved the so-called “Honest Elections” measure, or Initiative 122, a campaign finance reform plan offering a novel way of steering public funds to candidates who are willing to swear off big money PACs.
For supporters, the victory — authorizing the use by voters of publicly funded “democracy vouchers” that they can dole out to favored candidates — marks what they hope will be the first step forward in a wide-ranging reform effort spreading to other cities and states in the coming year….
The voucher model also is “a one-two punch” for candidates, Silver said. “They become more dependent on their constituents because their constituents become their funders, and No. 2, they’re part of what I would call a ‘dilution strategy’ — you dilute the space with lots of small-dollar contributions to offset the undue influence of super PACs.”
How “democracy vouchers” work
Beginning next summer, Seattle voters are expected to begin receiving $100 from the city, parceled out in four $25 vouchers, to contribute to local candidates who accept the new law’s restrictions, including not taking funds from PACs, adhering to strict spending caps, and enacting greater transparency. Candidates can redeem the vouchers with the city for real campaign cash, which will likely flow from increased property taxes.
The reform effort began at the grassroots, but morphed into a slickly managed operation that spent nearly $1.4 million, with more than half of that flowing from groups outside the city.
Alan Durning, founder of the nonprofit sustainability think tank Sightline, is an architect of the Seattle initiative. He believes the campaign helped identify a key problem with other reform plans.
“We know that one of the strongest arguments against public funding for campaigns is the idea of giving tax dollars to candidates that you disagree with,” Durning told CNN. “There are a lot of people who hate the idea.”
Currently, most such programs offer to match with public funds small donations for candidates who meet a host of varying requirements. In these cases, taxpayer money goes directly from the government to the campaigns, limiting voters’ connection to the process.
“The benefit of vouchers … is you can think about it as giving the first $100 of your own taxes to the candidate that you prefer,” Durning explained. “Your money is going to the candidate you send it to — so it keeps the choice with the individual voter.”
He added that the use of vouchers can also help the approach appeal to conservative voters, who generally are supportive of voucher-type programs and choice.
But critics call that a misleading argument.
“You’re still taking money from people and giving it to politicians who they may not necessarily want to support,” said Patrick Basham, the founder and director of the Democracy Institute, a libertarian think tank.
“Now, if you, as Voter X, give your four $25 vouchers to Candidate Y, then that’s your choice, but only some of [the money] came from you. It also came from other people.”…(More)”
The Transformation of Human Rights Fact-Finding
Book edited by Philip Alston and Sarah Knuckey: “Fact-finding is at the heart of human rights advocacy, and is often at the center of international controversies about alleged government abuses. In recent years, human rights fact-finding has greatly proliferated and become more sophisticated and complex, while also being subjected to stronger scrutiny from governments. Nevertheless, despite the prominence of fact-finding, it remains strikingly under-studied and under-theorized. Too little has been done to bring forth the assumptions, methodologies, and techniques of this rapidly developing field, or to open human rights fact-finding to critical and constructive scrutiny.
The Transformation of Human Rights Fact-Finding offers a multidisciplinary approach to the study of fact-finding with rigorous and critical analysis of the field of practice, while providing a range of accounts of what actually happens. It deepens the study and practice of human rights investigations, and fosters fact-finding as a discretely studied topic, while mapping crucial transformations in the field. The contributions to this book are the result of a major international conference organized by New York University Law School’s Center for Human Rights and Global Justice. Engaging the expertise and experience of the editors and contributing authors, it offers a broad approach encompassing contemporary issues and analysis across the human rights spectrum in law, international relations, and critical theory. This book addresses the major areas of human rights fact-finding such as victim and witness issues; fact-finding for advocacy, enforcement, and litigation; the role of interdisciplinary expertise and methodologies; crowd sourcing, social media, and big data; and international guidelines for fact-finding….(More)”
Government as a Platform: a historical and architectural analysis
Paper by Bendik Bygstad and Francis D’Silva: “A national administration is dependent on its archives and registers, for many purposes, such as tax collection, enforcement of law, economic governance, and welfare services. Today, these services are based on large digital infrastructures, which grow organically in volume and scope. Building on a critical realist approach we investigate a particularly successful infrastructure in Norway called Altinn, and ask: what are the evolutionary mechanisms for a successful “government as a platform”? We frame our study with two perspectives; a historical institutional perspective that traces the roots of Altinn back to the Middle Ages, and an architectural perspective that allows for a more detailed analysis of the consequences of digitalization and the role of platforms. We offer two insights from our study: we identify three evolutionary mechanisms of national registers, and we discuss a future scenario of government platforms as “digital commons”…(More)”
Push, Pull, and Spill: A Transdisciplinary Case Study in Municipal Open Government
Paper by Jan Whittington et al: “Cities hold considerable information, including details about the daily lives of residents and employees, maps of critical infrastructure, and records of the officials’ internal deliberations. Cities are beginning to realize that this data has economic and other value: If done wisely, the responsible release of city information can also release greater efficiency and innovation in the public and private sector. New services are cropping up that leverage open city data to great effect.
Meanwhile, activist groups and individual residents are placing increasing pressure on state and local government to be more transparent and accountable, even as others sound an alarm over the privacy issues that inevitably attend greater data promiscuity. This takes the form of political pressure to release more information, as well as increased requests for information under the many public records acts across the country.
The result of these forces is that cities are beginning to open their data as never before. It turns out there is surprisingly little research to date into the important and growing area of municipal open data. This article is among the first sustained, cross-disciplinary assessments of an open municipal government system. We are a team of researchers in law, computer science, information science, and urban studies. We have worked hand-in-hand with the City of Seattle, Washington for the better part of a year to understand its current procedures from each disciplinary perspective. Based on this empirical work, we generate a set of recommendations to help the city manage risk latent in opening its data….(More)”