overlap can be classified into four main categories: duplication, conflict,
coordination, and complexity.26
The broad political push toward deregulation across many economic sectors27
reflects a similar antipathy toward redundant legal oversight that may meddle
with economic factors or interfere with market-driven efficiency.28
While criticisms of redundancy are myriad, two key issues related to
regulatory misallocation recur in critical treatments of overlapping or
duplicative laws or systems of governance:
Overregulation. One critique of redundancy arises from the concern that
wasteful overregulation places inappropriately high burdens of cost and
compliance on regulated entities.29 Critics of redundancy express concern
that duplicative legal regulations coupled with confusion and uncertainty
about applicable laws and enforcement can render compliance overly
difficult.30 A related issue may be increased costs of enforcement and
implementation for regulatory agencies—and by extension the general
public—with little additional results to justify these extra costs.31 Regulatory
misallocation also may yield opportunity costs, as agencies or regulated
parties fail to engage in productive activities due to rigorous demands or
conflicts caused by redundant regulatory infrastructures.32
Underregulation. Conversely, redundant institutions may result in
underregulation. Under such a “regulatory commons problem,” regulatory
agencies evade responsibility by assuming that other agencies with
overlapping jurisdiction will address a specific mandate.33 Thus, redundancy
26. Todd S. Aagaard, Regulatory Overlap, Overlapping Legal Fields, and Statutory
Discontinuities, 29 VA. ENVTL. L.J. 237, 286 (2011) (citations omitted).
27. At the direction of President Obama, the United States has embarked on a thorough
review of federal agency regulations to eliminate duplication, redundancy, and inconsistency.
See Exec. Order No. 13,563, 3 C.F.R. 13563 (2011); Cass Sunstein, Cumulative Effects of
Regulations, OFFICE OF INFORMATION AND REGULATORY AFFAIRS (March 20, 2012), available
28. Whether these assertions are supported by factual evidence is debatable, yet they
motivate the prevailing wisdom about redundancy and regulation. See Rowan Miranda &
Allan Lerner, Bureaucracy, Organizational Redundancy, and the Privatization of Public
Services, 55 PUB. ADMIN. REV. 193, 193 (1995) (finding that service delivery arrangements
that combine government and private sector or nonprofit entities may be more cost effective
than services delivered by the private sector alone).
29. See Jody Freeman & Jim Rossi, Agency Coordination in Shared Regulatory Space,
125 HARV. L. REV. 1133, 1138 (2012) (citing Teresa M. Schwartz, Protecting Consumer
Health and Safety: The Need for Coordinated Regulation Among Federal Agencies, 43 GEO.
WASH. L. REV. 1031, 1032 (1975)).