Rethinking Reflexive Law for the Information Age: Hybrid and Flexible Regulation by Disclosure

Although it has its defenders,1 command-and-control environmental regulation has been criticised for being economically inefficient and for relying on the effectiveness of the regulator and its staff.2 Scholars have claimed that ‘traditional’ command-and-control methods of dealing with pollution, involving the use of uniform technology standards, operate in a fragmented manner with the inefficiency of a large central bureaucracy and without coordination. Unresponsive to new information, they do not always properly balance the costs and benefits of regulation and do not encourage continual reductions in pollution.3 These arguments have led to the development of a ‘second generation’ of regulatory instruments: market-based, further upstream, more flexible, built on public transparency, integrated into business planning, and focusing on incentives rather than punishment.4 These may operate in a flexible, modular way.5