Lawmaking Without Law: How Overreliance on Economics Fails Financial Regulation

44 Pages Posted: 18 Oct 2021 Last revised: 15 Mar 2022

See all articles by Steven L. Schwarcz

Steven L. Schwarcz

Duke University School of Law

Theodore L. Leonhardt

Duke University School of Law, Students

Date Written: October 14, 2021

Abstract

This article examines a fundamental failure of process in lawmaking: the overreliance of lawmakers on economists and economic scholarship when designing and implementing financial regulation, to the virtual exclusion of lawyers and legal scholarship. This overreliance leads to regulation that often is based on theoretical models and assumptions that are poorly informed by experience and may not withstand real-world testing. The article examines how to improve financial regulation by better integrating legal scholarship and lawyerly insights into the lawmaking process. Among other things, that will require law professors to gain the attention, and earn the respect, of lawmakers by writing more reality-based articles and publishing them not only in traditional law reviews but also in more accessible formats and policy-oriented forums.

Keywords: Financial Regulation, Overreliance,

Suggested Citation

Schwarcz, Steven L. and Leonhardt, Theodore L., Lawmaking Without Law: How Overreliance on Economics Fails Financial Regulation (October 14, 2021). Duke Law School Public Law & Legal Theory Series No. 2021-50, Available at SSRN: https://ssrn.com/abstract=3942767 or http://dx.doi.org/10.2139/ssrn.3942767

Steven L. Schwarcz (Contact Author)

Duke University School of Law ( email )

210 Science Drive
Box 90362
Durham, NC 27708
United States
919-613-7060 (Phone)
919-613-7231 (Fax)

Theodore L. Leonhardt

Duke University School of Law, Students

Durham, NC
United States

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