Enforcement and the Greater Good: The View from Financial Services Law & Regulation

By James Davey, Professor of Insurance & Commercial Law, University of Bristol Law School

Assume that we can agree what the greater good entails. And that we can design an optimal set of rules or principles that meets this objective. Who should enforce these rules, and how? This is an issue that caught the attention of leading scholars in the second half of the twentieth century. Papers by Becker, Stigler and Posner are emblematic of an initial burst of activity in the 1960s. This has since developed into a distinct branch of regulatory theory. Over time, this broadened beyond the architecture of public law and has become an embedded element within private law. This co-option of private law, and in particular the law of contract, as a form of governance has been decried by some but is now well established as a regulatory technique (Collins, 1999). (more…)