Regulatory Capabilities: A Normative Framework for Assessing the Distributional Effects of Regulation

39 Pages Posted: 6 Jul 2013

See all articles by Fabrizio Cafaggi

Fabrizio Cafaggi

Independent

Katharina Pistor

Columbia University School of Law

Date Written: July 5, 2013

Abstract

This paper develops the normative concept of "regulatory capabilities", which asserts that nobody – individuals, groups or entities – should be subjected to a regulatory regime – public or private, domestic or transnational – without some freedom to choose. Choice in this context means the ability to accept or reject a regulatory regime imposed by others or to create an alternative one. A mere formal option is not sufficient; the freedom to choose requires real alternatives. The concept of regulatory capabilities has particular traction in the transnational context where private, hybrid public-private and public actors compete for influence, shape domestic regulation and in doing so limit the scope for democratic self-governance. It also helps illuminate the distributional effects of domestic regulation. As such, "regulatory capabilities" is a contribution to the general debate on the normative foundation of regulation and governance.

Suggested Citation

Cafaggi, Fabrizio and Pistor, Katharina, Regulatory Capabilities: A Normative Framework for Assessing the Distributional Effects of Regulation (July 5, 2013). Columbia Public Law Research Paper No. 13-354. Available at SSRN: https://ssrn.com/abstract=2290218 or http://dx.doi.org/10.2139/ssrn.2290218

Fabrizio Cafaggi

Independent ( email )

No Address Available

Katharina Pistor (Contact Author)

Columbia University School of Law ( email )

435 West 116th Street
New York, NY 10025
United States
212-854-0068 (Phone)
212-854-7946 (Fax)

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