Cristie Ford (Peter A. Allard School of Law; European Corporate Governance Institute (ECGI)) has posted Trust in Regulation in a Time of Revolution (Regulation and Governance, forthcoming) on SSRN. Here is the abstract:
In a moment when big-P Politics feel practically catastrophic, the suggestion that we should be focusing on regulation could seem foolish, or worse: it could seem like some kind of self-serving effort to pretend our work rearranging deck chairs continues to matter. Regulation can feel like the opposite of resistance, and resistance is on many peoples’ minds these days, particularly in the United States. And, the goal of this paper is to argue that failing to focus on regulation – and especially on trust in regulation, in this time of revolution – would be a terrible mistake. Regulation is at the leading edge of politics in a way we sometimes fail to recognize. Regulation is where the “rubber” of policy and aspiration meets the “road” of implementation and subject-facing engagement. Regulation is the face of government for most people in their daily lives.
This article examines trust in regulation as a core value and precondition of the modern liberal democratic regulatory state. It develops a concept of justified trust in regulation, grounded in regulatory trustworthiness—honesty, competence, and reliability—rather than in proxies such as partisan loyalty, blind faith, obedience, or resignation. The article situates this conception of regulatory trustworthiness within liberal democratic rule‑of‑law commitments to equal respect, fairness, and accountability, and shows how it underpinned late‑twentieth‑century imaginings of the “regulatory state.” It then contrasts this model with an emerging illiberal vision, exemplified by the current American President’s emphasis on personal loyalty, in‑group allegiance, and zero‑sum politics – all of which actively repudiate the conditions for justified trust. Using regulatory theory and examples from contemporary US governance, the article argues that mutual justified trust between regulators and regulated actors is an indispensable “capital good” for effective, flexible, and fair regulatory regimes. It concludes that rebuilding a functional regulatory state after an illiberal turn requires explicitly naming, protecting, and measuring regulatory trustworthiness as a central liberal value, alongside the rule of law, democratic accountability, and a basic commitment to equality.