New Governance Tune-Up: How Behavioral Insights Can Help Refine the New Governance Regulatory Narrative

38 Pages Posted: 14 Feb 2018  

Kaimipono David Wenger

Thomas Jefferson School of Law

Date Written: February 13, 2018

Abstract

In recent years, a number of legal scholars have advocated “new governance” approaches to regulation. New governance scholars eschew both traditional command-and-control and complete deregulation models, instead focusing on middle-ground hybrid approaches in which legal actors seek to emulate private-sector success stories. New governance narratives paint a sometimes rosy picture of the potential benefits of this kind of hybrid approach.

This Article uses William Simon’s legal scholarship about Toyota as a jumping-off point to examine the framing of new governance narratives. New governance proposals often follow a particular story line, setting out empirical and case-study driven accounts of how to build a better mousetrap based on private-sector successes. This narrative structure is intuitive and is psychologically appealing. However, it may be prone to overstate causal connections, due to a variety of behavioral biases such as confirmation bias, hindsight bias, and representativeness heuristic. Scholars cognizant of these potential issues can better “tune up” the new governance framework.

Keywords: new governance, regulation, regulatory theory, behavioral economics

JEL Classification: K00

Suggested Citation

Wenger, Kaimipono David, New Governance Tune-Up: How Behavioral Insights Can Help Refine the New Governance Regulatory Narrative (February 13, 2018). Thomas Jefferson School of Law Research Paper No. 3123346. Available at SSRN: https://ssrn.com/abstract=3123346 or http://dx.doi.org/10.2139/ssrn.3123346

Kaimipono David Wenger (Contact Author)

Thomas Jefferson School of Law ( email )

1155 Island Ave
San Diego, CA 92101
United States
619-961-4347 (Phone)

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