Abstract
Design has long been employed for regulatory purposes: by ancient civilisations (such as the ancient Egyptian practice of filling in of burial shafts to discourage looting) through to contemporary communities (such as the use by digital media providers of ‘digital rights management’ technology to prevent the unauthorised copying of digital data). But identifying what counts as a ‘regulatory’ purpose, however, is not entirely straightforward, largely due to the notorious lack of clarity concerning the meaning of the term ‘regulation’. Within regulatory studies literature, the use of design for regulatory purposes has not been the subject of extensive and comprehensive analysis, although particular kinds of design technologies have been the focus of considerable scholarly attention. Nevertheless, two important themes can be identified within regulatory scholarship that may be of considerable assistance in interrogating contemporary debates concerning design for regulation: first, analysis of the tools or instruments that may be employed to implement regulatory policy goals, and secondly, debates concerning the legitimacy of regulation in particular contexts, or the legitimacy of particular forms or facets of the regulatory enterprise. Both these themes will be explored in this paper through a discussion of the challenges associated with the effectiveness of design-based approaches to regulation and in the course of examining some of the controversies that have surrounded its use, with a particular focus on the implications of design for various dimensions of responsibility.
In so doing, I will make three arguments. First, I will argue that design can be usefully understood as an instrument for implementing regulatory goals. Secondly, I will suggest that a regulatory perspective provides an illuminating lens for critically examining the intentional use of design to promote specific social outcomes by showing how such a perspective casts considerable light on their implications for political, moral and professional accountability and responsibility. Thirdly, I will suggest that, because design can be employed for regulatory purposes (particularly in the case of harm-mitigation technologies) without any need for external behavioural change on the part of human actors, Julia Black’s definition of regulation as ‘a process involving the sustained and focused attempt to alter the behaviour of others according to defined standards or purposes with the intention of producing a broadly defined outcome or outcomes’ should be refined to enable all design-based instruments and techniques to fall within the sphere of regulatory inquiry, rather than being confined only to those design-based approaches that intentionally seek to alter the behaviour of others.
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- 1.
- 2.
- 3.
Black, ibid 142
- 4.
Black, ibid
- 5.
- 6.
There are few spheres of economic activity that are not subject to some form of regulatory oversight and control, and daily news programs rarely pass without some mention of a significant regulatory decision, proposed regulatory reform, or allegations of some regulatory failure or scandal. Instances of alleged regulatory failure have been prominent throughout the late twentieth and early twenty-first century, including food safety (BSE in the 1990s and early 2000s), oil platforms (Piper Alpha in 1990, Deepwater Horizon in 2010), nuclear safety (Fukushima in 2011), and financial markets (Barings in 1995, the financial crisis post 2008)
- 7.
Baldwin et al. (2010)
- 8.
Hood et al. (2001)
- 9.
Some of these applications are referred to below
- 10.
Morgan and Yeung (2007), Chap. 3
- 11.
Wadden et al. (2002)
- 12.
For example, New York City has banned the use of artificial trans fat in food service establishments in the city aimed at reducing the rate of heart disease (see Mello (2009))
- 13.
For example, Hungary has introduced a “fat tax“ in an effort to combat obesity, and several US states have imposed an excise duty on sugar-sweetened beverages, partly motivated by a desire to combat obesity (see Cabrera Escobar et al. (2013))
- 14.
For example, in the UK, a national public awareness program including a public education campaign exhorting people to eat at least five portions of fruit and vegetables a day (the “5 A Day“ program) was launched in 2002 to raise awareness of the health benefits of fruit and vegetable consumption and to improve access to fruit and vegetables (see http://webarchive.nationalarchives.gov.uk/+/www.dh.gov.uk/en/Publichealth/Healthimprovement/FiveADay/index.htm) (Accessed on 25 Nov 2013)
- 15.
For example, mandatory food labelling requirements imposed by EU law are considered by the European Commission as a central plank of the EU’s obesity prevention strategy (see Garde (2007))
- 16.
For example, some US insurance companies and employers participate in wellness programs, pursuant to which employees are offered incentives in return for undertaking health-enhancing behaviors (see Mello and Rosenthal (2008))
- 17.
- 18.
Katyal (2002)
- 19.
Stier et al. (2007)
- 20.
Of course, if a state proposed to implement any of these strategies, it would raise serious concerns about their legitimacy, particularly in relation to individuals who did not consent to the intervention, but these issues are beyond the scope of this paper (see Yeung (2015) supra n 7)
- 21.
Sempos et al. (2000)
- 22.
Paul et al. (2011)
- 23.
Krista et al. (2013)
- 24.
The European Food Safety Authority Panel has issued guidance on the environmental risk assessment of genetically modified animals, which includes insects, birds, fish, farm animals, and pets (EFSA Panel on Genetically Modified Organisms (2013))
- 25.
See BBC News (2013)
- 26.
The Roslin Institute, University of Edinburgh (2013)
- 27.
- 28.
Nuffield Council on Bioethics (2002)
- 29.
Foster (2006)
- 30.
Thaler and Sunstein (2008)
- 31.
Ibid 6
- 32.
Ibid, 93
- 33.
The Rt Honourable David Cameron MP (2013)
- 34.
The Independent (2013)
- 35.
Nanoscience is currently being developed with a view to understanding how nanostructures contribute to the properties of food, thereby enabling food producers develop innovative ways of making similar products from different ingredients, for example, by removing most of the fat from ice cream without losing the smooth and creamy texture that consumers expect from that type of product (Ministerial Group on Nanotechnologies (2010))
- 36.
Black, above n 3
- 37.
Black (2008)
- 38.
Yeung (2004)
- 39.
Baldwin et al. (2012), Chap. 14
- 40.
- 41.
Black, ibid
- 42.
Hart (1961)
- 43.
Lyons (2011)
- 44.
For a discussion and critique of self-enforcement in the context of “tethered“ digital appliances, see Zittrain (2007)
- 45.
- 46.
Bovens (2010) and the literature cited therein
- 47.
Ibid, 949–951
- 48.
Ibid
- 49.
Gardner (2006)
- 50.
Cane (2002)
- 51.
Ibid
- 52.
Levi-Faur (2005)
- 53.
Black (2007)
- 54.
Levi-Faur, above n 51; Levy and Spiller (1996)
- 55.
- 56.
Ibid
- 57.
- 58.
Citron (2008)
- 59.
Lessig, ibid
- 60.
Ibid
- 61.
- 62.
The UK Open Rights Group, for example, argues that because this measure has been introduced without any legislative authority, the public appears to have no recourse when things go wrong, and there will be no one to pressurize (see the Open Rights Group Campaign (2013))
- 63.
Thaler and Sunstein above n 30, 244
- 64.
Ibid 244–245
- 65.
The disclosures by Edward Snowden and the responses of various heads of the government have received very extensive media coverage. On the response of the US administration, see, for example, K Connolly “Barack Obama: NSA is not rifling through ordinary people’s emails,“ The Guardian, London, 19 June 2013; on the response of the UK administration, see, for example, S Jenkins “Britain’s response to the surveillance scandal should ring every alarm bell,“ The Guardian, 4 November 2013
- 66.
Rostain (2010)
- 67.
Friedson (1973)
- 68.
Merry and McCall Smith (2001)
- 69.
Reason (2000)
- 70.
- 71.
For example, British teenager Wayne Jowett died in Nottingham, England, in 2001 following intrathecal administration of vincristine (Toft (2001))
- 72.
For example, Medicines and Healthcare Devices Regulatory Authority (2006)
- 73.
Kwayke et al. (2010)
- 74.
Smith et al. (2006), Dickson
- 75.
For a fuller analysis, see Yeung and Dixon-Woods (2010)
- 76.
Garland (2000)
- 77.
Duff and Marshall (2000)
- 78.
Raine (2013)
- 79.
- 80.
Colgrove (2006)
- 81.
Romero-Bosch (2007)
- 82.
See section “Design-based Regulation and Political Responsibility“ above
- 83.
Brownsword (2006)
- 84.
Kerr (2010)
- 85.
Ibid
- 86.
For one suggested approach, drawing on common pool resource theory and the “tragedy of the commons“ (see Yeung (2011b))
- 87.
Doorn and van de Poel (2012)
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Yeung, K. (2015). Design for the Value of Regulation . In: van den Hoven, J., Vermaas, P., van de Poel, I. (eds) Handbook of Ethics, Values, and Technological Design. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6970-0_32
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