Proportionality of regulation. What role for cognitive sciences?

The paper addresses the question of whether insights from behavioural sciences can strengthen the proportionality principle in regulatory policies. Our content is that evidence on the behaviour of regulatees can indeed provide... [ view full abstract ]

The paper addresses the question of whether insights from behavioural sciences can strengthen the proportionality principle in regulatory policies. Our content is that evidence on the behaviour of regulatees can indeed provide regulators with thicker information, can lead to group-specific/differentiated regulation, and can help designing more targeted controls. The consequence of such incorporation is strengthened proportionality.
Methodologically, the paper draws from behavioural literature to analyse the impact of incorporating cognitive insights into four phases of the regulatory process.
First, when deciding whether to rule or to change existing regulation, evidence on regulatees' reactions might prove fundamental, because empirical evidence may suggest that market or regulatory failure occurred due to widely diffused biases. Second, when designing the data gathering phase, regulators need to decide not only the width but also how deep and thick they need information to be. Therefore, they may conduct lab or field experiments to gather insights on the perspective behaviour of regulatees. Third, enforcement could also be designed using cognitive insights to enhance compliance. Evidence of an ‘echo effect' (i.e. the increased compliance observed where inspections are performed at the very beginning of firms’ lives) may be helpful when planning controls. It may suggest a compliant behaviour without putting an excessive burden on public administrations and regulatees. Fourth, as a consequence of integrating behavioural insights in the regulatory discourse, group-specific/differentiated regulation could be justified. This is the case, e.g. where empirical evidence shows different reactions to a given rule: consumers may prove smart, vulnerable or responsible. Consequently, in line with the proportionality principle, they may be addressed through various or no rules.
Our conclusion is thus that by crafting the regulatory policy around real individuals, insights from cognitive sciences may contribute to the construction of a thicker idea of proportionality.