The limits of evidence-based anti-bribery law

Author:

Davis Kevin E1

Affiliation:

1. Beller Family Professor of Business Law, New York University School of Law, New York City, United States. A version of this article formed the basis of the Inaugural Lecture for the Doctorate in Juridical Sciences at Pontificia Universidad Javeriana, Bogotá. I am grateful to members of the audience and faculty there for their comments and questions. I also am grateful for comments on an earlier draft from Ricky Revesz, Richard Stewart, Michael Trebilcock, David Trubek, and participants in the conference...

Abstract

Evidence-based regulation is a term of art that refers to the process of making decisions about regulation based on evidence generated through systematic research. There is increasing pressure to treat evidence-based regulation as a global best practice, including in the area of anti-bribery law. Too little attention has been paid to the fact that under certain conditions evidence-based regulation is likely to be a less appealing method of decision making than the alternative – namely, relying on judgment. Those conditions are: it is difficult to collect data on either interventions or outcomes; accurate causal inferences are difficult to draw; there is little warrant for believing that the same causal relationships will apply in a new context; or the decision makers in question lack the capacity to undertake one of these tasks. These conditions are likely to be present in complex, transnational, decentralized, and dynamic forms of business regulation such as the global anti-bribery regime.

Publisher

University of Toronto Press Inc. (UTPress)

Subject

Law,Sociology and Political Science

Reference186 articles.

1. Improving Regulation and Regulatory Review, Executive Order 13563 (18 January 2011) at para 1(a) (directing US federal agencies subject to executive oversight to adopt regulations 'based on the best available science' and to 'measure, and seek to improve, the actual results of regulatory requirements'). For academic support, see Michael Abramowicz, Ian Ayres & Yair Listokin, 'Randomizing Law' (2011) 159 U Pa L Rev 929. See also Zachary J Gubler, 'Experimental Rules' (2014) 55 Boston College L Rev 129 [Abramowicz, Ayres & Listokin, 'Randomizing Law']

2. John O McGinnis, 'Laws for Learning in an Age of Acceleration' (2011) 53 Wm & Mary L Rev 305

3. Cass Sunstein, 'Empirically Informed Regulation' (2011) 78 U Chicago L Rev 1349 at 1363-64 (suggesting in article on social science research evidence that continuing empirical research is desirable and citing Executive Order 13563)

4. Organisation for Economic Co-operation and Development (OECD), Recommendation of the Council on Regulatory Policy and Governance (2012), Annex at 6, para 1.1 ('[r]egulatory policy defines the process by which government, when identifying a policy objective, decides whether to use regulation as a policy instrument, and proceeds to draft and adopt a regulation through evidence-based decision- making')

5. OECD, OECD Regulatory Policy Outlook, 2015 (2015), ch 4 (evaluating countries in terms of whether they use regulatory impact assessment to support evidence-based regulation). It is important to note that aside from recommending careful analysis of data from previously implemented interventions, the OECD does not define the term 'evidence-based' or refer specifically to the idea of prioritizing evidence derived from systematic research.

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