At first blush, "self-regulation" seems to be self-contradicting. If government regulation of an industry or problem is considered necessary, how can that responsibility then be returned to those from whom it was taken? Notwithstanding this apparent contradiction, audited self-regulation is used successfully by federal regulatory agencies. It is apparently adopted, however, on an ad hoc basis: in one industry or application but not in another that possesses similar characteristics. This article reviews these previously uncollected efforts at audited self-regulation to evaluate the general usefulness of this regulatory technique across industries and applications. These insights would be relevant not only to reform current federal agency regulation but also to design new programs, since new schemes of self-regulation are continually appearing.
This article concludes that, within specific limits, experience has shown that audited self-regulation is a useful technique which should be considered in a systematic fashion by government agencies when formulating regulatory policies. Part I defines and narrows the scope of the term "audited self-regulation" to make possible a careful inquiry, and distinguishes other related forms of regulation. Part II discusses the potential advantages and limitations of audited self-regulation. Part III extrapolates from these advantages and limitations the characteristics of the regulation, agency, industry, and self-regulatory organization which suggest that self-regulation would be successful. In addition, part III discusses the principal legal requirements of such programs. Part IV is a survey of federal agencies use or attempted use of audited self-regulation in administration of their statutes, with an evaluation of each against the principles described in parts II and III. Part V combines the theories of parts II and III with the programs surveyed in part IV to distill essential elements of a successful program of audited self-regulation. Finally, part VI evaluates the options for achieving the systematic consideration of the use of audited self-regulation.
Douglas C. Michael, The Use of Audited Self-Regulation as a Regulatory Technique, 47 Admin L. Rev. 171 (1995).