Flexible Regulation Scholarship, 1980-2012: An Empirical Analysis
Innovation and the State: Finance, Regulation, and Justice (Cambridge University Press, 2017 Forthcoming)
25 Pages Posted: 8 May 2017
Date Written: May 5, 2017
This piece reviews the 198 US law review articles that were most influential within flexible regulation scholarship (which includes meta regulation, responsive regulation, reflexive law, principles based regulation, new governance, and more) between 1980 and 2012, which also discussed innovation. It is chapter 4 of a forthcoming book on financial innovation and regulation. The analysis demonstrates that across this time period, flexible regulation scholars advocated for regulatory structures that were permeable to three main non-legal forces: market forces, deliberation and community norms, and industry standards. The image that emerges is of a diverse scholarly community, within which many adopted economics-derived notions of incentives and performance metrics. However, the scholarship overall is not - contrary, perhaps, to some more recent generalizations about the field - essentially “neoliberal” or market fundamentalist. It does not prioritize market forces or market-based evaluative methods above other forces or methods. It also contains rich veins of justice-oriented and deliberation-based claims. As well, relative to environmental and administrative law (the other main subject areas), the financial regulation articles in particular are more skeptical about who will benefit from new innovations, and more concerned with specific new innovations and their risks. However, most articles still treat private sector innovation only at an abstract, idealized level - a problem that subsequent chapters in this book aim to remedy.
Keywords: regulation, ideology, empirical analysis, regulation scholarship, neoliberal, civic republicanism, regulatory state, financial regulation, innovation
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