Regulatory Shaming

Abstract

Should the government engage in public shaming? This Article is the first to define and explore an intriguing practice—“regulatory shaming.” Regulatory shaming refers to the publication of negative information by administrative agencies concerning private regulated bodies, mostly corporations, in order to further public-interest goals. For instance, regulatory agencies such as the Occupational Safety and Health Administration send out condemning press releases and use social media to publish workplace safety violations with the names of responsible companies, while the United States Securities and Exchange Commission and the Food and Drug Administration shame companies for high internal pay gaps and for blocking competition in the pharmaceutical industry. The United States Department of Health and Human Services rates nursing homes on a one to five star scale, and the United States Environmental Protection Agency assigns color ratings to factories according to level of compliance with environmental regulation. The practice of regulatory shaming is at a crossroads. While some agencies are adopting shaming strategies, others do not; some are even rolling them back. In light of these contradictory trends, it is time to seriously explore shaming by administrative agencies from a normative perspective. The Article argues that shaming can be a legitimate, efficient, and democratic regulatory approach, and it suggests general considerations for utilizing shaming tactics.

Keywords: regulation, shaming, administrative agencies, administrative law, corporations, FDA, OSHA, SEC