Regulatory Arbitrage

67 Pages Posted: 9 Mar 2010

Date Written: March 4, 2010

Abstract

Most of us share a vague intuition that the rich, sophisticated, well-advised, and politically connected somehow game the system to avoid regulatory burdens the rest of us comply with. The intuition is correct; this Article explains how it’s done.

Regulatory gamesmanship typically relies on a planning technique known as regulatory arbitrage, which occurs when parties take advantage of a gap between the economics of a deal and its regulatory treatment, restructuring the deal to reduce or avoid regulatory costs without unduly altering the underlying economics of the deal. This Article provides the first comprehensive theory of regulatory arbitrage, identifying the conditions under which arbitrage takes place and the various legal, business, professional, ethical, and political constraints on arbitrage. This theoretical framework reveals how regulatory arbitrage distorts regulatory competition, shifts the incidence of regulatory costs, and fosters a lack of transparency and accountability that undermines the rule of law.

Keywords: tax, regulatory arbitrage, regulatory competition

Suggested Citation

Fleischer, Victor, Regulatory Arbitrage (March 4, 2010). U of Colorado Law Legal Studies Research Paper No. 10-11. Available at SSRN: https://ssrn.com/abstract=1567212 or http://dx.doi.org/10.2139/ssrn.1567212

Victor Fleischer (Contact Author)

UC-Irvine School of Law ( email )

401 E. Peltason Dr.
Ste. 1000
Irvine, CA 92697-1000
United States

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