Disclosure-based schemes are examples of ‘reflexive law’ in action. Perhaps the best-known example in environmental regulation is the US Toxics Release Inventory, which achieved unexpected reductions in emissions. Pollution Release and Transfer Registers (PRTRs) are now used across the world. Disclosure-based schemes require careful design. In order for information to be useful and usable for regulatory purposes, it must be comparable. There is therefore a need for standardisation in reporting methods and metrics. Institutional factors which frame the context for decision-making, such as the range of possible actions, the standards of proof and exclusionary rules that apply, and the oversight arrangements can influence the creation, collection and consideration of information in regulatory processes. In order to be effective, informational regulation must be sustainable, gaining in use, accuracy and scope over time.

1. Rethinking Reflexive Law
for the Information Age
Rónán Kennedy
School of Law, National University of Ireland
Galway
“Regulation” – Image by Rob Stemple http://www.flickr.com/photos/26881907@N05/

2. Rónán
Kennedy
http://ict4er.org
Environmental Law
in the ‘Information
Age’Reflexive and
Informational Regulation
Third generation ‘new
governance’
approaches
Process-based
Systems-based
Management-based
Image by Ignotus the Mage https://www.flickr.com/photos/ignotus/

3. Rónán
Kennedy
http://ict4er.org
Informational
Regulation
Mandatory reporting and
disclosure, e.g. Toxics
Release Inventory
Voluntary disclosure, e.g.
FAIRTRADE, Forest
Stewardship Council labels
Fence-line monitoring, e.g.
‘Bucket brigades’
Product labelling

4. Rónán
Kennedy
http://ict4er.org
Reflexive Regulation
Environmental Impact Assessment
e.g. NEPA
Voluntary approaches
e.g. codes of practice
Eco-Management and Audit Schemes (EMAS)

5. Rónán
Kennedy
http://ict4er.org
Examples of
Regulation by
Disclosure
Toxics Release Inventory
Proposition 65 (California)
Pollution and Transfer
Registries
e.g. European Pollutant
Emission Register
(prtr.ec.europa.eu)

6. Rónán
Kennedy
http://ict4er.org
Possibilities of
Regulation by
Disclosure
Focuses management attention
Reduces transaction costs for outsiders
Significant external pressure
... from customers, shareholders, financial
institutions ...
Benchmarks performance and facilitates feedback
loops

7. Rónán
Kennedy
http://ict4er.org
Criticisms of
Regulation by
Disclosure
Theory over substance
Procedure over substance
Misleading for consumers
Cannot guarantee particular outcomes

8. Rónán
Kennedy
http://ict4er.org
Practical Difficulties
with Regulation by
Disclosure
Replicating the problems of command-and-
control?
System can be ‘gamed’
Unpredictable results
Excessive costs

9. Rónán
Kennedy
http://ict4er.org
Practical Difficulties
with Regulation by
Disclosure
Limited understanding of sustainability
Intractable individual habits
Privacy and confidentiality
Muddying the rule of law

10. Rónán
Kennedy
http://ict4er.org
Avoiding
Technological
Determinism
Is there really an ‘Information Revolution’?
Power does not disappear
ICT opens new opportunities and challenges
Information and power become intertwined

11. Rónán
Kennedy
http://ict4er.org
Improving
Disclosure-Based
Schemes
Use as part of hybrid strategy
Be aware of limitations in information
Follow good institutional design
Standardize results

12. Rónán
Kennedy
http://ict4er.org
Design Principles
Match disclosure to risk
Design for accuracy
Recognize disclosure as a
continuum
Construct dynamic systems that
can incorporate feedback
Increase use, accuracy, and
scope
‘Everyone else is doing it’
Image by Jurgen Appelo https://www.flickr.com/photos/jurgenappelo/

13. Questions?
Rónán Kennedy
School of Law
National University of Ireland Galway
ronan.m.kennedy@nuigalway.ie
http://ict4er.org