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Principles-Based Regulation

Many regulatory policy experts across the political spectrum call for better review of regulations after they are put in place to get rid of stale, outdated, and inefficient regulations. The findings from ex-post, retrospective reviews could also serve to validate ex-ante assessments. Susan Dudley provides a concise “retrospective review of retrospective review” in a May 2013 brief for George Washington University’s Regulatory Studies Center, with an overview of the history and current status of the practice, as well as arguments for more of it.

Michael Mandel and Diana Carew of the Progressive Policy Institute, in a May 2013 report, wrote of the adverse effects of “regulatory accumulation” (“the natural buildup of regulations over time”) on economic growth and its disproportionate burden on small businesses in terms of the hurdles to business formation, hiring of workers, and expansion of product markets.

They describe three types of regulatory accumulation: (i) “pebbles in a stream” where too many regulations in the aggregate cause a blockage effect that increases costs and slows innovation; (ii) interaction between small numbers of existing regulations (intended or not, obvious or not) that raise costs for businesses; and (iii) “behavioral overload” that forces management to prioritize compliance with regulations over growth and innovation.

Multiple presidents (from both parties and with increasing emphasis over time) have pushed for greater retrospective review of regulations via executive orders. Yet “retrospective review” of the “cumulative effects” of regulation is not commonly practiced because it is time consuming, analytically challenging, expensive (staff- and data-intensive), and difficult to operationalize in an effective and impartial manner.