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http://ssrn.com/abstract=1711901
 
 

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Regulatory Contrarians


Brett McDonnell


University of Minnesota Law School

Daniel Schwarcz


University of Minnesota Law School

November 19, 2010

North Carolina Law Review, Vol. 88, 2011
Minnesota Legal Studies Research Paper No. 10-64

Abstract:     
This Essay explores the role that "regulatory contrarians" can play in promoting more adaptive financial regulation. Such contrarians have several distinguishing features. First, they possess persuasive authority by virtue of their position, access to media and officials, or speaking engagements and reports. Second, they are affiliated with, and enjoy privileged access to, a regulatory entity, but are nonetheless independent, as reflected in their budget, staffing, and/or priorities. Finally, they are tasked with studying the regulatory process, policy positions, and the regulated market and in some way reporting on deficiencies and potential improvements. Institutions which possess some but not all of these features, or not all features in full form, may be called quasi-contrarian. The Essay argues that regulatory contrarians can modestly limit the risk that regulators will fail to adapt to newly emerging and ever-shifting financial risks, either failing to enact new rules or failing to modify or repeal old rules. Despite this potential, the Essay argues that, in the domain of financial regulation, contrarians are used only in a small subset of the instances where they can provide value. Currently, financial regulatory contrarians fit into four basic categories: (i) Ombudsman Contrarians, (ii) Consumer Representative Contrarians, (iii) Investigative Contrarians, and (iv) Research Contrarians. Whereas the first two types of contrarians are limited in their subject area to consumer protection and services, the latter two types of contrarians are limited in their methodological scope. Finally, the Essay argues that the Dodd-Frank Act holds the potential to expand each of these categories of financial regulatory contrarians and thereby embrace a more robust strategy for exploiting their potential.

Number of Pages in PDF File: 52

Keywords: financial regulation, contrarians, Dodd-Frank

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Date posted: November 20, 2010 ; Last revised: June 25, 2011

Suggested Citation

McDonnell, Brett and Schwarcz, Daniel, Regulatory Contrarians (November 19, 2010). North Carolina Law Review, Vol. 88, 2011; Minnesota Legal Studies Research Paper No. 10-64. Available at SSRN: http://ssrn.com/abstract=1711901 or http://dx.doi.org/10.2139/ssrn.1711901

Contact Information

Brett H. McDonnell
University of Minnesota Law School ( email )
229 19th Avenue South
Minneapolis, MN 55455
United States
612-625-1373 (Phone)
Daniel B. Schwarcz (Contact Author)
University of Minnesota Law School ( email )
229 19th Avenue South
Minneapolis, MN 55455
United States
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