Regulatory Shaming

By Yadin, Sharon | Environmental Law, Spring 2019 | Go to article overview

Regulatory Shaming


Yadin, Sharon, Environmental Law


I.    INTRODUCTION                                   408 II.   CIVILIAN SHAMING AND GOVERNMENTAL SHAMING      412       A. Shaming by Civilians                        412       B. Shaming by the Government                   413       C. Psychological and Moral Aspects of Shaming  418 III.  REGULATORY SHAMING                             419       A. What is "Regulatory Shaming"?               419       B. Types of Regulatory Shaming                 425       C. Shaming Regulation Versus Disclosure          Regulation                                  427       D. The Mechanism of Regulatory Shaming         431 IV.   JUSTIFICATIONS FOR REGULATORY SHAMING          433       A. The Economic Justification: Shaming as an          Efficient Means of Enforcement              434          1. Enforcement Costs                        435          2. Enforcement Pyramid                      437          3. Deterrence                               441       B. The Democratic Justification: Shaming as a          Tool for Enhancing Public Participation     443       C. The Liberal Justification: Corporations          Cannot Feel Shame                           446 V.    CONCLUSION                                     448 

I. INTRODUCTION

Should the government engage in public shaming? This Article aims to evaluate administrative agencies' practice of shaming corporations into good behavior. Regulatory shaming is now at a crossroads. While some agencies are currently adopting new shaming strategies, others are rolling back such practices. For instance, an Occupational Safety and Health Administration (OSHA) rule introduced in 2016, which promoted workplace safety by naming and shaming companies responsible for safety violations that resulted in injuries, illness, or fatality, (1) is currently in the process of being repealed. (2) However, the United States Food and Drug Administration (FDA) is taking a different tack, as it recently published a list exposing pharmaceutical companies that are acting to prevent the entry of generic drugs to the market in order to protect their own branded versions. (3) The United States Securities and Exchange Commission (SEC) has adopted a new shaming strategy as well, introducing a regulation that requires companies to disclose the compensation ratio between their median employee (by salary) and their CEO. (4) In light of these contradicting approaches, now is the time to seriously explore regulatory shaming from a normative perspective. In this Article, I assert that shaming is a legitimate and efficient regulatory tactic, and examine its many advantages as well as some possible pitfalls.

The word "shaming" is often used in the context of social media, or other types of media, to refer to cases where a person is exposed and condoned by others for an inappropriate or unseemly behavior or characteristic. (5) These practices may include, for example, shaming sex offenders for their crimes, (6) shaming parents who irresponsibly subject their children to danger, (7) and shaming college professors for being "difficult." (8) Regulatory shaming is different from these civilian shamings. It refers to situations in which shaming is undertaken as a governmental regulatory strategy by administrative agencies and not by a private person. Though other branches of government are not the focus of this Article, judges and legislators can also engage in regulatory shaming. (9)

While there is no definitive definition of general shaming, this Article is based on the relatively broad meaning that was formulated by the well-known criminologist, John Braithwaite, of expressing disapproval with the intent of invoking condemnation by others. (10) My definition of the specific term "regulatory shaming" will be discussed in detail below, (11) but in a nutshell, regulatory shaming refers to any intentional publication, by regulatory agencies in the executive branch, of information regarding companies' misbehavior that is designed to convey a normatively negative message to the public, for a regulatory purpose. …

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