Connecticut Law Review
While theories of regulation abound, woefully inadequate attention has been given to growing patterns of "intersystemic" and "dialectical" regulation in the world today. In this rapidly expanding universe of interactions, independent regulatory agencies, born of autonomous jurisdictions, nonetheless face a combination of jurisdictional overlap with, and regulatory dependence on, one another. Here, the cross-jurisdictional interaction of regulators is no longer the voluntary interaction embraced by transnationalists; it is, instead, an unavoidable reality of acknowledgement and engagement, potentially culminating in the integration of discrete sets of regulatory rules into a collective whole.
Such patterns of regulatory engagement are increasingly evident, across an array of fields. Under the No Child Left Behind Act, federal and state education officials depend on one another's regulatory initiatives, mandates, and funding commitments in pursuit of their own education goals. Transnationally, the U.S. Comptroller of the Currency must necessarily rely on the initiatives of various transnational and foreign regulators to combat money laundering. Here, I emphasize the experience of the Securities and Exchange Commission in recent years, as it has been forced to engage closely with both its transnational and foreign counterparts, and sub-national regulators seeking to leave their mark on the markets - and perhaps to win their state governorship.
For the most part, patterns of intersystemic and dialectical regulation have been resisted, both in the scholarly literature and in practice. This response is hardly surprising. It reflects some visceral sense of law's project as one of categorization, clear definition, and line-drawing. Justice Scalia has spoken of the "Rule of Law" as the "law of rules." The majority in New York v. United States, with its insistence on clear lines of federal and state accountability, spoke in a similar spirit. Yet such devotion to certainty and clarity - whatever its general utility - has minimized our appreciation, let alone embrace, of selective overlap and dependence in the interaction of regulatory entities across jurisdictional lines. While corporate and securities scholars have showered endless attention on the internal affairs doctrine - a doctrine whose essential function is to minimize regulatory overlap and dependence - they have had far less to say about the muddled reality of corporate and securities regulation in practice.
In negotiating the overlap of regulatory authority across jurisdictional lines, the traditional lawyerly task has thus been one of line-drawing. A more resonant project might be that of the poet. This project lies not in line-drawing, distinguishing, or simplifying. To the contrary, it explores - and even encourages - overlap, interdependence, and attendant complexity. From this distinct perspective, the goal is not to identify the single regulatory actor best suited or most appropriately charged with responsibility for a given entity or subject matter. Rather, multiple regulators are embraced as having a shared - if both competing and cooperating - place in a more inclusive and all-encompassing regulatory regime.
University of Connecticut School of Law
Robert B. Ahdieh,
Conn. L. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/1208