States, Markets, and Gatekeepers: Public-Private Regulatory Regimes in an Era of Economic Globalization
Christopher M. Bruner
Washington and Lee University School of Law
Michigan Journal of International Law, Vol. 30, No. 1, 2008
Society of International Economic Law (SIEL) Inaugural Conference Paper
This paper illuminates the spectrum of international economic regimes through discussion of an under-theorized regulatory structure in which traditional distinctions between state and market, public and private power, hard and soft law, and international and domestic policy realms, essentially collapse - the public-private gatekeeper.
Specifically, I examine striking similarities between global bond markets and e-commerce markets through comparison of entities regulating admission to them - the dominant credit rating agencies (Standard & Poor's and Moody's), and the Internet Corporation for Assigned Names and Numbers (ICANN). Following an examination of the development of these markets and the global regulatory power exercised by these private-sector entities as a result of their unusual positions under U.S. law, the paper considers the challenge they pose to prevailing theoretical perspectives on the regulation of the global economy.
I argue that these public-private gatekeepers reflect two forms of theoretical tension. The first is that between state-based and market-based forms of authority - the former built on a foundation of political legitimacy and the latter built on reputational legitimacy. The second form of tension, which I argue gives rise to the first, is the United States' simultaneous pursuit of two very different conceptions of sovereignty - Westphalian sovereignty emphasizing the centrality and autonomy of the state, and an increasingly prevalent competing conception of sovereignty emphasizing cooperation and compromise in the face of economic globalization.
Through these entities, the U.S. government has sought to preserve centralized power while cultivating the perception of market-based private ordering. This, I argue, represents an unstable conflation of divergent views on how the global economy ought to be managed.
Number of Pages in PDF File: 52
Keywords: gatekeepers, international law, international relations, sovereignty, hegemony, private authority, credit ratings, rating agencies, sovereign ratings, NRSROs, Moody's, Standard & Poor's, Internet, ICANN, DNS, domain names, Internet governance
JEL Classification: F02, F30, G10, G15, G18, G20, G28, K22, K33, L33
Date posted: June 30, 2008 ; Last revised: January 29, 2009