Regulatory failure

When we think of the issues of health and safety that exist in a modern complex economy, it is impossible to imagine that these social goods will be produced in sufficient quantity and quality by market forces alone. Safety and health hazards are typically regarded as "externalities" by private companies -- if they can be "dumped" on the public without cost, this is good for the profitability of the company. And state regulation is the appropriate remedy for this tendency of a market-based economy to chronically produce hazards and harms, whether in the form of environmental pollution, unsafe foods and drugs, or unsafe industrial processes. David Moss and John Cisternino's New Perspectives on Regulation provides some genuinely important perspectives on the role and effectiveness of government regulation in an epoch which has been shaped by virulent efforts to reduce or eliminate regulations on private activity. This volume is a report from the Tobin Project.

It is poignant to read the optimism that the editors and contributors have -- in 2009 -- about the resurgence of support for government regulation. The financial crisis of 2008 had stimulated a vigorous round of regulation of financial institutions, and most of the contributors took this as a harbinger of a fresh public support for regulation more generally. Of course events have shown this confidence to be sadly mistaken; the dismantling of Federal regulatory regimes by the Trump administration threatens to take the country back to the period described by Upton Sinclair in the early part of the prior century. But what this demonstrates is the great importance of the Tobin Project. We need to build a public understanding and consensus around the unavoidable necessity of effective and pervasive regulatory regimes in environment, health, product safety, and industrial safety.

Here is how Mitchell Weiss, Executive Director of the Tobin Project, describes the project culminating in this volume:

To this end, in the fall of 2008 the Tobin Project approached leading scholars in the social sciences with an unusual request: we asked them to think about the topic of economic regulation and share key insights from their fields in a manner that would be accessible to both policymakers and the public. Because we were concerned that a conventional literature survey might obscure as much as it revealed, we asked instead that the writers provide a broad sketch of the most promising research in their fields pertaining to regulation; that they identify guiding principles for policymakers wherever possible; that they animate these principles with concrete policy proposals; and, in general, that they keep academic language and footnotes to a minimum. (5)

The lead essay is provided by Joseph Stiglitz, who looks more closely than previous decades of economists had done at the real consequences of market failure. Stiglitz puts the point about market failure very crisply:

Only under certain ideal circumstances may individuals, acting on their own, obtain “pareto efficient” outcomes, that is, situations in which no one can be made better off without making another worse off. These individuals involved must be rational and well informed, and must operate in competitive market- places that encompass a full range of insurance and credit markets. In the absence of these ideal circumstances, there exist government interventions that can potentially increase societal efficiency and/or equity. (11)

And regulation is unpopular -- with the businesses, landowners, and other powerful agents whose actions are constrained.

By its nature, a regulation restricts an individual or firm from doing what it otherwise would have done. Those whose behavior is so restricted may complain about, say, their loss of profits and potential adverse effects on innovation. But the purpose of government intervention is to address potential consequences that go beyond the parties directly involved, in situations in which private profit is not a good measure of social impact. Appropriate regulation may even advance welfare-enhancing innovations. (13)

Stiglitz pays attention to the pervasive problem of "regulatory capture":

The current system has made regulatory capture too easy. The voices of those who have benefited from lax regulation are strong; the perspectives of the investment community have been well represented. Among those whose perspectives need to be better represented are the laborers whose jobs would be lost by macro-mismanagement, and the pension holders whose pension funds would be eviscerated by excessive risk taking.

One of the arguments for a financial products safety commission, which would assess the efficacy and risks of new products and ascertain appropriate usage, is that it would have a clear mandate, and be staffed by people whose only concern would be protecting the safety and efficacy of the products being sold. It would be focused on the interests of the ordinary consumer and investors, not the interests of the financial institutions selling the products. (18)

It is very interesting to read Stiglitz's essay with attention to the economic focus he offers. His examples all come from the financial industry -- the risk at hand in 2008-2009. But the arguments apply equally profoundly to manufacturing, the pharmaceutical and food industries, energy industries, farming and ranching, and the for-profit education sector. At the same time the institutional details are different, and an essay on this subject with a focus on nuclear or chemical plants would probably identify a different set of institutional barriers to effective regulation.

Also particularly interesting is the contribution by Michael Barr, Eldar Shafir, and Sendhil Mullainathan on how behavioral perspectives on "rational action" can lead to more effective regulatory regimes. This essay pays close attention to the findings of experimental economics and behavioral economics, and the deviations from "pure economic rationality" that are pervasive in ordinary economic decision making. These features of decision-making are likely to be relevant to the effectiveness of a regulatory regime as well. Further, it suggests important areas of consumer behavior that are particularly subject to exploitative practices by financial companies -- creating a new need for regulation of these kinds of practices. Here is how they summarize their approach:

We propose a different approach to regulation. Whereas the classical perspective assumes that people generally know what is important and knowable, plan with insight and patience, and carry out their plans with wisdom and self-control, the central gist of the behavioral perspective is that people often fail to know and understand things that matter; that they misperceive, misallocate, and fail to carry out their intended plans; and that the context in which people function has great impact on their behavior, and, consequently, merits careful attention and constructive work. In our framework, successful regulation requires integrating this richer view of human behavior with our understanding of markets. Firms will operate on the contour de ned by this psychology and will respond strategically to regulations. As we describe above, because firms have a great deal of latitude in issue framing, product design, and so on, they have the capacity to a affect behavior and circumvent or pervert regulatory constraints. Ironically, firms’ capacity to do so is enhanced by their interaction with “behavioral” consumers (as opposed to the hypothetically rational actors of neoclassical economic theory), since so many of the things a regulator would find very hard to control (for example, frames, design, complexity, etc.) can greatly influence consumers’ behavior. e challenge of behaviorally informed regulation, therefore, is to be well designed and insightful both about human behavior and about the behaviors that firms are likely to exhibit in response to both consumer behavior and regulation. (55)

The contributions to this volume are very suggestive with regard to the issues of product safety, manufacturing safety, food and drug safety, and the like which constitute the larger core of the need for regulatory regimes. And the challenges faced in the areas of financial regulation discussed here are likely to be found to be illuminating in other sectors as well.

Empowering the safety officer?

How can industries involving processes that create large risks of harm for individuals or populations be modified so they are more capable of detecting and eliminating the precursors of harmful accidents? How can nuclear accidents, aviation crashes, chemical plant explosions, and medical errors be reduced, given that each of these activities involves large bureaucratic organizations conducting complex operations and with substantial inter-system linkages? How can organizations be reformed to enhance safety and to minimize the likelihood of harmful accidents?

One of the lessons learned from the Challenger space shuttle disaster is the importance of a strongly empowered safety officer in organizations that deal in high-risk activities. This means the creation of a position dedicated to ensuring safe operations that falls outside the normal chain of command. The idea is that the normal decision-making hierarchy of a large organization has a built-in tendency to maintain production schedules and avoid costly delays. In other words, there is a built-in incentive to treat safety issues with lower priority than most people would expect.

If there had been an empowered safety officer in the launch hierarchy for the Challenger launch in 1986, there is a good chance this officer would have listened more carefully to the Morton-Thiokol engineering team's concerns about low temperature damage to O-rings and would have ordered a halt to the launch sequence until temperatures in Florida raised to the critical value. The Rogers Commission faulted the decision-making process leading to the launch decision in its final report on the accident (The Report of the Presidential Commission on the Space Shuttle Challenger Accident - The Tragedy of Mission 51-L in 1986 - Volume One, Volume Two, Volume Three).

This approach is productive because empowering a safety officer creates a different set of interests in the management of a risky process. The safety officer's interest is in safety, whereas other decision makers are concerned about revenues and costs, public relations, reputation, and other instrumental goods. So a dedicated safety officer is empowered to raise safety concerns that other officers might be hesitant to raise. Ordinary bureaucratic incentives may lead to underestimating risks or concealing faults; so lowering the accident rate requires giving some individuals the incentive and power to act effectively to reduce risks.

Similar findings have emerged in the study of medical and hospital errors. It has been recognized that high-risk activities are made less risky by empowering all members of the team to call a halt in an activity when they perceive a safety issue. When all members of the surgical team are empowered to halt a procedure when they note an apparent error, serious operating-room errors are reduced. (Here is a report from the American College of Obstetricians and Gynecologists on surgical patient safety; link. And here is a 1999 National Academy report on medical error; link.)

The effectiveness of a team-based approach to safety depends on one central fact. There is a high level of expertise embodied in the staff operating a surgical suite, an engineering laboratory, or a drug manufacturing facility. By empowering these individuals to stop a procedure when they judge there is an unrecognized error in play, this greatly extend the amount of embodied knowledge involved in a process. The surgeon, the commanding officer, or the lab director is no longer the sole expert whose judgments count.

But it also seems clear that these innovations don't work equally well in all circumstances. Take nuclear power plant operations. In Atomic Accidents: A History of Nuclear Meltdowns and Disasters: From the Ozark Mountains to Fukushima James Mahaffey documents multiple examples of nuclear accidents that resulted from the efforts of mid-level workers to address an emerging problem in an improvised way. In the case of nuclear power plant safety, it appears that the best prescription for safety is to insist on rigid adherence to pre-established protocols. In this case the function of a safety officer is to monitor operations to ensure protocol conformance -- not to exercise independent judgment about the best way to respond to an unfavorable reactor event.

It is in fact an interesting exercise to try to identify the kinds of operations in which these innovations are likely to be effective.

Here is a fascinating interview in Slate with Jim Bagian, a former astronaut, one-time director of the Veteran Administration's National Center for Patient Safety, and distinguished safety expert; link. Bagian emphasizes the importance of taking a system-based approach to safety. Rather than focusing on finding blame for specific individuals whose actions led to an accident, Bagian emphasizes the importance of tracing back to the institutional, organizational, or logistic background of the accident. What can be changed in the process -- of delivering medications to patients, of fueling a rocket, or of moving nuclear solutions around in a laboratory -- that make the likelihood of an accident substantially lower? (Here is a co-authored piece by Bagian and others on the topic of team-based patient safety in the operating room; link.)

The safety principles involved here seem fairly simple: cultivate a culture in which errors and near-misses are reported and investigated without blame; empower individuals within risky processes to halt the process if their expertise and experience indicates the possibility of a significant risky error; create individuals within organizations whose interests are defined in terms of the identification and resolution of unsafe practices or conditions; and share information about safety within the industry and with the public.