GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2016

Status

Accepted

Abstract

The contemporary regulatory process is global. Markets and the problems they generate—consumer privacy, chemicals safety, and many others—cross borders and so too do regulatory efforts to address those problems. The process, however, by which national and international jurisdictions decide common regulatory problems defies the traditional mold of hierarchical state law. There is no world government with the power to impose a single set of principles and procedures on the multiple jurisdictions, and therefore the global regulatory process is characterized as much by diversity and discord as it is by coordination and convergence.

The new field of comparative law and regulation is devoted to understanding the global regulatory process. This introductory essay lays the groundwork for the volume and future research in the field by defining the object of study and by identifying three important avenues of theoretical inquiry. Comparative law and regulation covers the law of the regulatory function—legislative and administrative rulemaking, oversight, enforcement, and judicial review—in both domestic and international jurisdictions, and involving both public and private actors. Theoretically, the field tackles three critical features of the global regulatory process—jurisdictional variation, convergence (anddivergence) over time, and legal prescription based on comparison. Jurisdictional variation is best captured by classifications based on paradigms of public law and models of legitimate private involvement in public regulation. The question of whether and how convergence occurs should be studied using causal theories of legal transplants and diffusion. And legal prescription based on comparison, a favorite rhetorical device in the global regulatory process, should be evaluated based on a normatively explicit and empirically sensitive functional method of comparative law research. These conceptual and theoretical tools apply equally to domestic and international jurisdictions.

GW Paper Series

GWU Law School Public Law Research Paper No. 2016-49; GWU Legal Studies Research Paper No. 2016-49

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