The Timing and Source of Regulation
13 Pages Posted: 11 May 2014
Date Written: May 9, 2014
Abstract
This article adds two important variables to the rules-principles debate: timing and source. In other words, the topic is the when and where of the application of both rules and principles. The goal is to ask, both generally and in the context of financial market regulation, how scholarly discussion of legal rules and principles law might benefit from a more transparent analysis of temporal and legal source variables. With respect to financial regulation, the article provides a framework for understanding and assessing the shift from ex ante to ex post and from principles to rules. It concludes that regulators and policy makers might benefit from considering the advantages of moving away from ex ante regulation in the direction of ex post adjudication.
Keywords: rules, principles, regulation, adjudication, arbitration, securities, derivatives, ISDA, transparency, disclosure, proprietary trading, Volcker Rule, financial innovation
JEL Classification: A12, G28, K10, K22, K41
Suggested Citation: Suggested Citation