Regulation as Respect
23 Pages Posted: 14 Sep 2023
Date Written: September 11, 2023
The so-called “meme stock” phenomenon of early 2021 was an unexpected, riveting, short-lived, and ultimately tragicomic (or maybe just tragic) event. It was the product of many things but, on some level and for some investors, it was political protest: grassroots “voice” in the form of online stock purchases.
The modern regulatory state does not have effective mechanisms for absorbing public perspectives in all their variety and nuance. Public input mechanisms (including but not limited to notice and comment rulemaking) are embedded within what Julie Cohen and Ari Waldman have called the “regulatory managerialist” model. Within this paradigm, non-expert knowledges and instincts have tended to be marginalized, discredited, and ignored; or else pulled into the gravitational field of managerialism, to be absorbed and digested into something tamed, tidy, and therefore false and incomplete.
The failings of regulatory managerialism reflect a fundamental sociopolitical problem of our age, which is the wide and expanding distance between the ways we (expertised, “elite” actors) have designed public and regulatory systems, and the lives and views of the (“regular”) people on whose behalves those systems were meant to have been built.
Meme stock investors will not be the most vulnerable and marginalized people we need to be concerned with. Their experience does not need to be most central in confronting the disconnect between the state and its people. At the same time, this paper asks what we can learn from peoples’ alienation and anger that can help us transcend the managerialist paradigm that constrains regulation. It argues that the usual reform recommendations, ranging from better communication to tripartism to deliberative and agonistic theories, are inadequate if not even bankrupt in justice and equity-seeking terms. It then reaches out to consider human centered design, design justice, and some of the restorative and reconciliatory ways in which societies have tried to beyond historic injustice. Together, these trace a path forward for a more human-regarding, socially competent regulatory approach. I propose that it is time to think of regulation as respect.
Keywords: meme stocks, notice and comment rulemaking, securities regulation, regulatory accountability, regulatory managerialism, human centered design, design justice, restorative justice
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