Nanotechnology Regulation: A Study in Claims Making

There appears to be consensus on the notion that the hazards of nanotechnology are a social problem in need of resolution, but much dispute remains over what that resolution should be. There are a variety of potential policy tools for tackling this challenge, including conventional direct regulation, self-regulation, tort liability, financial guarantees, and more. The literature in this area is replete with proposals embracing one or more of these tools, typically using conventional regulation as a foil in which its inadequacy is presented as justification for a new proposed approach. At its core, the existing literature raises a critical question: What is the most effective role of government as regulator in these circumstances? This article explores that question by focusing upon two policy approaches in particular: conventional regulation and self-regulation, often described as hard law and soft law, respectively. Drawing from the sociology of social problems, the article examines the soft law construction of the nanotechnology problem and the associated solutions, with emphasis on the claims-making strategies used. In particular, it critically examines the rhetoric and underlying grounds for the soft law approach. It also sets out the grounds and framework for an alternative construction and solution-the concept of iterative regulation.