Regulatory Analysis in Corporate Law
The Modern Law Review, Vol. 79, Issue 4, pp. 537-574, 2016
63 Pages Posted: 22 Mar 2016 Last revised: 29 Nov 2016
Date Written: March 1, 2016
Drawing from recent experiences in the US, UK, and EU, this article examines regulatory analysis of corporate law policies. It suggests that regulatory analysis, as currently understood and applied in this area, suffers from severe weaknesses. The effects of proposed corporate law policies are often particularly difficult to predict and even more difficult to quantify, which negatively impacts analytical reliability. Moreover, given its nature and interconnections with politics, corporate law is less amenable to purely technocratic assessments than other areas of law. Based on three case studies, the article explores these problems. It outlines a revised ‘procedural’ view, suggesting that regulatory analysis in corporate law should be understood primarily as a process for enhancing information, transparency, and monitoring, independently from specific normative criteria. This leads to several implications. In short, regulatory analysis should combine quantified analysis with leeway for regulatory judgment and focus on increased consultation, critical engagement, review, and transparency as the dominant guiding factors.
Keywords: Regulatory Analysis, Impact Analysis, Cost Benefit Analysis, Corporate Law, Regulation
JEL Classification: K22
Suggested Citation: Suggested Citation