Abstract

http://ssrn.com/abstract=1829005
 
 

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Agency Threats


Tim Wu


Columbia University - Law School

May 2, 2011

Duke Law Journal, Vol. 60, p. 1841, 2011

Abstract:     
Most legal writers are implicitly or explicitly critical of the use of threats as an alternative to rulemaking or adjudication. The general presumption is that the use of threats is a kind of symptom of an underlying malady - a broken rulemaking or adjudication process. For example, Professor Lars Noah describes the use of threats as an “intractable problem,” given the difficulty of “controlling the exercise of such wide-ranging discretionary power.” In this brief Essay, I write in defense of regulatory threats in particular contexts.

The use of threats instead of law can be a useful choice - not simply a procedural end run. My argument is that the merits of any regulative modality cannot be determined without reference to the state of the industry being regulated. Threat regimes, I suggest, are important and are best justified when the industry is undergoing rapid change - under conditions of “high uncertainty.” Highly informal regimes are most useful, that is, when the agency faces a problem in an environment in which facts are highly unclear and evolving. Examples include periods surrounding a newly invented technology or business model, or a practice about which little is known. Conversely, in mature, settled industries, use of informal procedures is much harder to justify.

Number of Pages in PDF File: 17

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Date posted: May 2, 2011  

Suggested Citation

Wu, Tim, Agency Threats (May 2, 2011). Duke Law Journal, Vol. 60, p. 1841, 2011. Available at SSRN: http://ssrn.com/abstract=1829005

Contact Information

Tim Wu (Contact Author)
Columbia University - Law School ( email )
435 West 116th Street
New York, NY 10025
United States
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