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http://ssrn.com/abstract=1782852
 
 

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Risk Regulation and Regulatory Litigation


Patrick Luff


Arizona State University (ASU) - Sandra Day O'Connor College of Law; University of Oxford - Faculty of Law

March 10, 2011

Rutgers Law Review, Vol. 64, p. 73, 2011
Oxford Student Legal Studies Paper No. 10/2011

Abstract:     
Since at least the 1960s, when Congress enacted civil rights statutes that provided for private enforcement, courts have been hotbeds of public policy. Only recently, however, has this phenomenon been recognized for what it is: courts have become essential actors in the regulatory state. What little scholarship there is on the use of courts to achieve regulatory ends is often heavy on rhetoric, but short on theory. While commentators have been quick to criticize the phenomenon of regulatory litigation, they have done little to determine what it actually is. As a result, the young field of regulatory litigation lacks fundamental theoretical discussions necessary for the fruitful development of the field. This article fills the gaps in the theoretical literature in three ways. First, this article presents the theory that regulatory litigation has developed to address the gaps between socially demanded levels of risk regulation and the amount of risk protection actually provided by the state. Second, this article collects and analyzes the scholarship to date that attempts to find the line that divides regulatory from non-regulatory litigation, and explains how and why previous definitions of regulatory litigation have fallen short. Finally, this article presents a theoretical discussion of the nature of regulatory litigation that distinguishes between top-down regulation through statutory promulgation and bottom-up regulation that occurs through the remedial choices made by litigants and judges.

Number of Pages in PDF File: 43

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Date posted: March 10, 2011 ; Last revised: July 8, 2013

Suggested Citation

Luff, Patrick, Risk Regulation and Regulatory Litigation (March 10, 2011). Rutgers Law Review, Vol. 64, p. 73, 2011; Oxford Student Legal Studies Paper No. 10/2011. Available at SSRN: http://ssrn.com/abstract=1782852

Contact Information

Patrick A. Luff (Contact Author)
Arizona State University (ASU) - Sandra Day O'Connor College of Law ( email )
Box 877906
Tempe, AZ 85287-7906
United States
University of Oxford - Faculty of Law ( email )
St. Cross Building
St. Cross Road
Oxford, OX1 3UJ
United Kingdom
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