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Thursday, July 07, 2005

Best practices: Regulation through okay practice

Administrative law scholars have been dissatisfied with the pace of notice and comment rulemaking for decades, and the search for alternatives has been a vibrant, longstanding one.

Now a new regulatory technique seems to be taking hold: regulation through non-binding "best practices" instead of through traditional hard rules.  Best practices, all the rage in business, have been increasingly adopted by government to harmonize regulatory schemes and give content to new initiatives.  Part of their attractiveness to regulators no doubt stems from the fact that non-binding best practices conveniently avoid the resource-intensive vagaries of the Federal Register process - not to mention judicial review.

But are best practices really best?  Or are they just a way of encourage regulators and regulateds to settle on "average practices?"  The W$J, in this week's Informed Patient column, reports that in medical care, at least, there is little evidence that hospitals who joined a federal health care quality-improvement program that seeks to educate health care providers on best practices in medicine performed any better than hospitals who didn't.

I have an article on best practices as a new technique of administrative law coming out in the NYU Law Review in the spring, where, believe me, you'll get a chance to hear lots more about the topic.  Allow me to observe now, though, that best practices are no panacea, particularly because, as the WSJ observes, they're often not very good at improving performance.  There's no carrot, and no stick to best practices - there's just a mechanism of coordination around practices which might be, but by no means necessarily are, "best."

Nonetheless, best practices regulation is a sign, I think, that the American regulatory state is changing.  Never very command and control, the state today is becoming even more oriented towards suggestion, encouragement through funding, and leadership by example.  We'll see more and more stories like those in the Wall Street Journal.

Posted by David Zaring on July 7, 2005 at 02:20 PM in Article Spotlight | Permalink

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