Julia Black
Administrative support:
Room: Columbia House 1.00
Julia Black is currently Pro Director for Research at LSE.& She
joined the Law Department in 1994. She completed her first degree in
Jurisprudence and her DPhil at Oxford University. Her primary
research interest is regulation.& She has had a &British Academy /
Leverhulme Trust Senior Research Fellowship, and been a Visiting
Fellow at the University of Sydney and at &&All Souls College,
Oxford, and in 2014 was the Sir Frank Holmes Visiting Professor in
Public Policy at the University of Victoria, Wellington. She has
written extensively on regulatory issues in a number of areas, and
has advised policy makers, consumer bodies and regulators on issues
of institutional design and regulatory policy. Julia was elected a
Fellow of the British Academy in 2015.
She is Director of the Law Department's
She is also
a research associate of LSE's
(CARR), based at LSE.
Research Interests
Julia's principal research interest is to
explore the nature, dynamics and legitimacy of regulatory regimes, both
state and non-state. She also specialises in financial services
regulation, and is interested in the regulation of risk, particularly in
biotechnology, and in public law.
REF Impact Case Study
External Activities
Julia has advised a number of governmental and consumer
bodies in the UK and overseas, including the OECD, the National Audit
Office, the environment agencies of the UK and Ireland, the Legal Services
Board, the Solicitors Regulatory Authority, the Financial Services
Authority, the Department for Constitutional Affairs, the Human
Fertilisation and Embryology Authority, the Law Commission of England and
Wales, the Canadian Investment Dealers' Association and the Australian Law
Reform Commission.
Julia was a member the Steering Group for the Better
Regulation Executive's Penalties Review and a member of the Department of
Health’s Working Party developing a Common Framework of Principles for the
direct-to-consumer sale of genetic testing services. She is a lay member of
the Board of the Solicitors Regulation Authority and chair of the SRA
Standards Committee. She was an academic advisor to the Bank of England's
Fair and Effective Markets Review and is on the steering committee for the
Bank’s Open Forum.
Julia is also General Editor of the
and on the editorial boards of
and the Journal of Financial Regulation.
Regulatory Innovation: A
Comparative Analysis
(Cheltenham: Edward Elgar, October 2005); co-edited with M. Lodge
and M. Thatcher
Much hype has been generated about the importance of innovation
for public and private sector organisations. &Regulatory
Innovation& offers the first detailed study of regulatory
innovation in a multiplicity of countries and domains. This
book draws on in-depth studies of innovation in regulatory
instruments and practices across high- and low-technology
sectors, across different countries and from the early to
the late 20th century. Highlighting different 'worlds' of
regulatory innovation - those of the individual, the
organisation, the state, the global polity, and innovation
itself, this book offers a fresh perspective and valuable
insights for the practice and study of regulatory
innovation. The explicit comparative focus of the case
studies and the 'worlds of regulatory innovation' approach
make this book essential reading for academic researchers
and students interested in regulation.
Rules and Regulators
(Oxford: OUP, 1997).
Black's book is the first authoritative study of rulemaking
in one of the most important areas of economic life:
financial services. The books has three main aims: first, to
build a jurisprudential and linguistic analysis of rules and
interpretation, drawing out the implication of these
analyses and developing quality proposals for how rules
could be used as instruments of regulation. Second, it
interprets that analysis and set of proposals with an
empirical study of the formation and use of rules in a
particular regulatory system: financial services, and third,
it evaluates the nature of the rulemaking process. The
author's main case study, examining the use of
self-regulation in the financial services sector,
complements the detailed analysis of rule formation and
uses. The book will be an invaluable addition to the
libararies of all administrative lawyers and anyone with an
interest in the provision and regulation of financial
Selected articlesand chapters in books
'Learning from Regulatory Disasters' Law Society and
Economy Working Paper Series &WPS 24-2014 December 2014
Regulatory disasters are catastrophic events or series of events which have
significantly harmful impacts on the life, health or financial wellbeing of
individuals or the environment. They are caused, at least in part, by failures
in, or unforeseen consequences of, the design and /or operation of the
regulatory system put in place to prevent those harmful effects from occurring.
Regulatory disasters are horrendous for those affected by them. Because of that
we have an obligation to learn as much from them as we can, notwithstanding all
the well-known challenges related to policy and organisational learning. The
article focuses on five distinct and unrelated regulatory disasters which,
although they occurred in apparently unrelated domains or countries, contain
insights for all regulators as the regulatory regimes share a common set of
elements which through their differential configuration and interaction create
the unique dynamics of that regime. In the regulatory disasters analysed here,
these manifest themselves as six contributory causes, operating alone or
together: the incentives on i the organisational dynamics
of regulators, regulated operators and the complexity of the regulatory system
in whi weaknesses, ambiguities and contradictions in the
regulator misunderstandings of the problem and the
problems with communication about the conduct expected, or
and trust and accountability structures.
(with Robert Baldwin and Gerard O'Leary) 'Risk regulation
and transnationality: institutional accountability as a driver of innovation'
Transnational Environmental Law ), pp.373-390
Discusses how the Irish Environmental Protection Agency was obliged to adopt a national inspection plan (NIP) for domestic waste water treatment systems after interventions by the European Commission and the European Court of Justice as a case study of the challenges environmental regulators face when they are situated within multi-level, transnational governance structures. Examines the framework adopted for the creation of the NIP, including its use of Good Regulatory Intervention Design.
'Reconceiving Financial Markets-From the Economic to
the Social' Journal of Corporate Law Studies 13
(2) (2013) pp.401-442
The article develops a social conception of financial markets, and draws out some of the implications of that conception for financial regulators. Drawing on bodies of institutionalist theories, social network theories, and the sociology of science and technology, including technical systems, I suggest that we can develop a far more enriched conception of markets than that of the still relatively sparse neoclassical economic model of markets, even as modified by behavioural economics. The move to this social conception of markets provides an alternative cognitive framework for how regulators understand the behaviour of actors within markets, the function of markets, their structure and organisation, the role of calculative devices in price formation and governance processes, the power relations and interconnections between actors within markets, the role of trust and confidence in markets, the relevance of internal organisational dynamics to understanding behaviour of organisations within markets, and the role that regulators and supervisors themselves have in constituting markets and shaping decisions that market actors make.
'Seeing, Knowing, and Regulating Financial
Markets: Moving the Cognitive Framework from the Economic to the Social'&
Society and Economy Working Paper Series, WPS 24-2013
In the wake of the financial crisis, significant questions have been raised as to the appropriateness of the economic conception of markets and of behaviour that has for the last few decades dominated policy makers in financial regulation. In response, some regulators are starting to revise their understandings of behaviour of actors within financial markets. However, the conception of the dynamics of markets themselves remains largely intact. This article argues that in order to regulate financial markets, we need a more sophisticated and realistic cognitive framework through which to analyse their dynamics and on which to base their regulation. To that end, the article develops a social conception of financial markets, drawing on institutionalist theories, social network theories, and the sociology of science and technology, including technical systems. Whilst there are no easy answers, the move to this social conception of markets provides an alternative cognitive framework for how regulators see and know financial markets: how they understand the behaviour of actors within markets, the function of markets, their structure and organisation, the role of calculative devices in price formation and governance processes, the power relations and interconnections between actors within markets, the role of trust and confidence in markets, the relevance of internal organisational dynamics to understanding behaviour of organisations within markets, and the role that regulators and supervisors themselves have in constituting markets and shaping decisions that market actors make.
'Paradoxes and Failures: -New Governance- Techniques
and the Financial Crisis' Modern Law Review ()
This article examines the performance of four ‘new governance’
techniques of regulation in the period leading up to the financial
crisis: principles based regulation, risk based regulation,
meta‐regulation and enrolment. These techniques have been advocated on
the basis that they are responsive, flexible, and in enrolling others in
the regulatory project thereby expand its capacity, and even its
legitimacy. However, experience in the crisis revealed that in their
implementation they can be out of touch or indulgent, focus heavily on
auditable systems and processes, and that in enrolling others they can
increase vulnerabilities and the potential for negative endogenous
effects. The argument is not that there should be a return to
adversarial ‘command and control’ regulation, rather that experience of
these strategies in the crisis suggests a need to understand in greater
depth the refractive effects of the organisational, technical/functional
and cognitive dimensions of regulatory governance, if we are to
understand and adapt its performance in different contexts.
'Transnational Business Governance Interactions:
Conceptualizations and Framework for Analysis' (Burkard Eberlein, Kenneth
W.Abbott, Julia Black, Errol Meidlinger, Stepan Wood) Osgoode Hall Law School
: Comparative Research in Law & Political Economy Research Paper Series
This article demonstrates the value of studying interactions in transnational business
governance (TBG) and proposes an analytical framework for that purpose. The number of TBG
schemes involving non-state authority to govern business conduct across borders has vastly
expanded in a wide range of issue areas. As TBG initiatives proliferate, they increasingly interact
with one another, and with state-based and other normative regimes. The key challenge is to
understand the implications of TBG interactions for regulatory capacity and performance – the
most fruitful initial focus – and ultimately for the impacts of regulation on social and
environmental problems. To gain purchase on these complex issues, the article develops an
original framework that disaggregates the regulatory process, focusing on the points at which
interactions may occur and suggesting, for each point, a series of analytical questions that probe
the key features of TBG interactions.
'Calling Regulators to Account: Challenges, Capacities and
Prospects'
Society and Economy Working Paper Series, WPS 15-2012
Since their inception, public lawyers and political scientists have fulminated at the lack of accountability of regulatory agencies. But, though it may surprise their critics, regulatory agencies do not go out of their way to be unaccountable. The difficulties of accountability, this article argues, lie in large part elsewhere: with the institutional position and accountability capacity of the accountors, and with the particular nature of the challenges that face them. The article focuses on developments in the roles of the four main accountors in the political domain in turn: the core executive, Parliament, the National Audit Office and consumer bodies, exploring their relationships both with the accountees
(the regulators) and with other bodies which are calling those
regulators to account.
‘Restructuring Global and EU Financial Regulation:
Character, Capacities and Learning’ in G.Ferrarini, K.J.Hopt and
E.Wymeersch (eds), Rethinking Financial Regulation and Supervision in
Times of Crisis (OUP 2012)
‘When Risk Based Regulation Aims Low: A Strategic Framework’
() Regulation and Governance 131-148 (with R. Baldwin)
This article develops a strategic framework for
regulators to employ when choosing intervention strategies for dealing
with low risks and reviewing performance, building on the analysis by
the same authors in the previous edition of this journal. The framework
occupies the operational “middle ground” between risk analysis and
formal enforcement action. At its core is a matrix, the Good Regulatory
Intervention Design (GRID), which provides a framework to categorize
sites or activities on the basis of two factors: the nature of the risk
and the nature of the regulatee. Using GRID, regulators can select which
intervention tools to use, and determine the overall level of regulatory
intensity that should apply. GRID is accompanied by the Good Regulatory
Assessment Framework (GRAF) for agencies to use in reviewing their
performance and provides a step-by-step process for enabling “double
loop learning.” The article also argues that the process of developing
such a framework highlighted the extent to which “low risk” and “high
risk” regulation are distinct. “Low risk” means “low priority.”
Justifying why certain risks should not receive much regulatory
attention requires a particular type of engagement, and has a bearing on
the regulatory strategies that are adopted.
‘When Risk Based Regulation Aims Low: Challenges and
Approaches’ () Regulation and Governance 1-21 (with R. Baldwin)
Risk-based regulation is becoming a familiar regulatory
strategy in a wide range of areas and countries. Regulatory attention tends
to focus, at least initially, on high risks but low-risk regulatees or
activities tend to form the bulk of the regulated population. This article
asks why regulators need to address low risks and it outlines the potential
difficulties that such risks present. It then considers how regulators tend
to deal with lower risks in practice. A body of literature and survey-based
research is used to develop a taxonomy of intervention strategies that may
be useful in relation to low-risk activities, and, indeed, more widely. In
an article to be published in the subsequent issue of this journal, we will
then develop a strategic framework for regulators to employ when choosing
intervention strategies and we will assesses whether, and how, such a
framework could be used by regulatory agencies in a manner that is operable,
dynamic, transparent, and justifiable.
‘The Rise (and Fall?) of Principles Based
Regulation’ in K. Alexander and N. Moloney (eds) Law Reform and
Financial Markets (Cheltenham: Edward Elgar, 2011)
‘Outcomes Focused Regulation – The Historical Context’ in A.
Hopper QC and G. Treverton-Jones QC, Outcomes-Focused Regulation (The Law
Society, London, 2011)
click here for publisher's site
Restructuring Global and EU Financial Regulation: Capacities,
Coordination and Learning,
Society and Economy Working Paper Series, WPS 18-2010
It is said that 'generals fight the last war'.
Regulators can do the same. The question is whether in the plethora
of reforms that are being developed, the financial regulators are
building the regulatory equivalent of the Maginot Line or whether
they are devising strategies that will enable them to counter, or at
the very least anticipate, the next crisis. The paper focuses on
regulators’ capacities for anticipation rather than resilience per
se. It argues that for these capacities to be developed, the current
mechanisms by which the financial regulators learn of their own and
each others’ performance need to be quite fundamentally reoriented
and regulators need to build in stronger mechanisms for cognitive
challenge. The paper analyses the cognitive shifts prompted by the
crisis, and associated policy developments. It then considers the
changes in organisational structures of financial regulation at the
global and EU levels, linking those to the cognitive shifts
identified, and focusing on current mechanisms of observation,
communication, enforcement and coordination. In particular it
examines how key actors are positioning themselves within the
regulatory system as a whole and the modes of coordination they are
developing. It then considers how the system’s existing and
potential capacities for reflexive learning and dynamic
responsiveness can be strengthened. It focuses on two elements of
that challenge: building capacity through enhancing information and
knowledge, both about what is happening outside the system in the
markets and the performance of the regulatory system itself, and
developing mechanisms of challenge.
'The Credit
Crisis and the Constitution' in D. Oliver, T. Prosser and R. Rawlings (eds),
The Regulatory State (Oxford: OUP, 2010)
This collection of fifteen essays by leading experts in
regulation is unique in its focus on the constitutional implications of recent
regulatory developments in the UK, the EU, and the US. The chapters reflect
current developments and crises which are significant in many areas of public
policy, not only regulation. These include the development of governance in
place of government in many policy areas, the emergence of networks of public
and private actors, the credit crunch, techniques for countering climate change,
the implications for fundamental rights of regulatory arrangements and the
development of complex accountability mechanisms designed to promote policy
objectives.
'The role of risk in regulatory processes' in R.
Baldwin, M. Lodge and M. Cave Oxford Handbook of Regulation (OUP,
Regulation
is often thought of as an activity that restricts behaviour and
prevents the occurrence of certain undesirable activities, but
the influence of regulation can also be enabling or
facilitative, as when a market could potentially be chaotic if
uncontrolled. This Handbook provides a clear and authoritative
discussion of the major trends and issues in regulation over the
last thirty years, together with an outline of prospective
developments. It brings together contributions from leading
scholars from a range of disciplines and countries.
Freshfields Bruckhaus Deringer LLP, in collaboration
with Jonathan Fisher and Julia Black, 'Law and regulation for
global financial markets: enforcing the new regime - incentive or
deterrence?' L. & F.M.R. )346-359.
Assesses proposals to reform the regime for collective
actions and consumer redress for regulatory compliance failures by
financial institutions. Summarises the reform proposals including the
Financial Services Authority's suggested scheme for missold payment
protection insurance. Considers the future of criminal enforcement in
the financial sector. Evaluates the various redress options against the
criteria of functionality, fairness, reliability and accountability.
'Risk Based Regulation: Choices, Practices and Lessons
Being Learned' in Risk and Regulatory Policy: Improving the Governance of
Risk (OECD, 2010)
R. Baldwin and J. Black, 'Really Responsive Risk-Based Regulation'
Law and Policy 32 (2) 2010, pp.181-213
Regulators in a number of countries are increasingly developing "risk-based" strategies to manage their resources, and their reputations as "risk-based regulators" have become much lauded by regulatory reformers. This widespread endorsement of risk-based regulation, together with the experience of regulatory failure, prompts us to consider how risk-based regulators can attune the logics of risk analyses to the complex problems and the dynamics of regulation in practice. We argue, first, that regulators have to regulate in a way that is responsive to five elements: (1) regulated firms' behavior, attitude, (2) regulation's instit (3) interactions of (4) re and (5) change. Secondly, we argue that the challenges of regulation to which regulators have to respond vary across the different regulatory tasks of detection, response development, enforcement, assessment, and modification. Using the "really responsive" framework, we highlight some of the strengths and limitations of using risk-based regulation to manage risk and uncertainty within the constraints that flow from practical circumstances and, indeed, from the framework of risk-based regulation itself. The need for a revised, more nuanced conception of risk-based regulation is stressed.
'Legitimacy and the Competition for Regulatory Share'.
Society and Economy Working Paper Series, WPS 14-2009, July 2009
Legitimacy is not just a normative
chal it is also a functional one.
Without legitimacy, regulators will not be able to motivate
others to accept and support their regulatory strategies.
Regulators, therefore, have to attempt to create and manage
their own legitimacy. Legitimacy management is a key issue
in particular for non-state regulators that lack a legally
given monopoly or mandate to regulate, for they have to
persuade others to comply with their norms. Moreover, they
may have to compete for ‘regulatory share’; in other words,
they may have to compete against other regulators in an
attempt to ensure that others ‘buy’ their regulations rather
than those of their competitor. This paper argues that
legitimacy is a key element in this competition for
regulatory share. The paper distinguishes between
export-based and import-based strategies of regulatory
competition, and identifies different strategies for
managing legitimacy in an attempt to gain regulatory share.
It goes on to suggest that in order to understand the role
of legitimacy in this dynamic, we need a particular
conception of legitimacy. Legitimacy should be
conceptualized not as an attribute or a resource, but as an
endowment. Regulators can try to gain legitimacy and can do
so in the context of a competition for regulatory share, but
whether they get it and from whom depend on the assessments
of their various legitimacy communities. Despite the
organisation’s best efforts, legitimacy may not be
forthcoming at all from those legitimacy communities from
whom it is sought, thus limiting the regulator’s ability to
expand its regulatory share.
'Rebuilding the credibility of markets
and regulators'
Law & Financial Markets Review ), 1-2.
'Constructing and contesting legitimacy and
accountability in polycentric regulatory regimes' Regulation &
Governance (7–164
The legitimacy and accountability of polycentric
regulatory regimes, particularly at the transnational
level, has been severely criticized, and the search is on to find
ways in which they can be
enhanced. This paper argues that before developing even more
proposals, we need to pay far
greater attention to the dynamics of accountability and legitimacy
relationships, and to how
those in regulatory regimes respond to them. The article thus first
seeks to develop a closer
analysis of three key elements of legitimacy and accountability
relationships which it suggests
are central to these dynamics: The role of the institutional
environment in the construction of
legitimacy, the dialectical nature of accountability relationships,
and the communicative structures
through which accountability occurs and legitimacy is constructed.
Second, the article
explores how organizations in regulatory regimes respond, or are
likely to respond, to multiple
legitimacy and accountability claims, and how they themselves seek
to build legitimacy in
complex and dynamic situations. The arguments developed here are not
normative: There is
no ''grand solution''proposed to the normative questions of when
regulators should be considered
legitimate or how to make them so. Rather, the article seeks to
analyse the dynamics of
legitimacy and accountability relationships as they occur in an
attempt to build a more realistic
foundation on which grander ''how to''proposals can be built. For
until we understand these
dynamics, the grander, normative arguments risk being simply pipe
dreams – diverting, but in
the end making little difference.
'Forms and paradoxes of principles-based
regulation' &(2008) Capital Markets Law Journal,&
Vol. 3, (4) 425-457
J. Black and D. Rouch, 'The
development of the global markets as rule-makers: engagement and
legitimacy' () Law and Financial Markets Review 218-233
The first article in this
series (J Benjamin and D Rouch, "The International
Markets as a Source of Global Law: The Privatisation of
Rule-making?" () Law and Financial Markets
Review 78) assessed the extent to which the markets
are able to act as rule-makers and the nature of the
"normative arena" in which they do so. This article
considers how their role could develop and the
implications of that in terms of market engagement in
the rule-making process and legitimacy. The final
article in the series will look at some of the risks
this changing landscape creates, particularly in the
context of dispute resolution and enforcement.
R. Baldwin and J. Black, 'Really
Responsive Regulation' () Modern Law Review 59-94.
Really Responsive
Regulation seeks to add to current theories of
enforcement by stressing the case for regulators to be
responsive not only to the attitude of the regulated
firm but also to the operating and cognitive frameworks
the institutional environment and performance
of t the different logics of
regulatory
and to changes in each
of these elements. The approach pervades all the
different tasks of enforcement activity: detecting
undesirable or non- developing tools
and strategies for respondi
enforcing those
assessing their
and modifying them accordingly. The
value of the approach is shown by outlining its
potential application to UK environmental and fisheries
controls. Putting the system into effect is itself
challenging but failing to regulate really responsively
can constitute an expensive process of shooting in the
'Tensions in the Regulatory State'
[2007] Public Law 58-73
Explores developments in
managing the regulatory state, namely: (1)
meta-regulatory strategies aimed at governmental and
non-gov (2) risk-
and (3) the increased enforcement and sanctioning powers
of governmental regulators.
'Making a Success of Principles Based
Regulation' with M. Hopper and C. Band, () Law and
Financial Markets Review 191-206
The UK Financial Services
Authority (FSA) leads the way in the development of
Principles-based regulation of the financial services
industry. It is proposing a significant shift towards
reliance on broadly stated Principles rather than more
detailed rules. The implications of a more
Principles-based approach for regulators, those
regulated by the FSA and those whose interests the
regulatory regime is designed to protect are the subject
of ongoing dialogue.&
'The Decentred Regulatory State?' in
P. Vass (ed) 2006-7 CRI Regulatory Review (Centre for
Regulated Industries, University of Bath, 2007) 'Managing Regulatory Risks and
Defining the Parameters of Blame: the Case of the Australian
Prudential Regulation Authority' (2006) Law and Policy 1&&
Risk based
regulation is a new arrival in the lexicon of risk and
regulation. Regulators in Australia, Canada and the UK
have begun developing systems and processes to assess
the probability and impact of compliance failures by
regulated firms, and to adjust their relationship with
firms accordingly. This article explores the motivations
for, and key elements of, the risk based frameworks of
one of those regulators, the Australian Prudential
Regulation Authority (APRA). It broadens out from this
case study to argue first, that risk based regulation
goes hand in hand with the technique of 'meta'
regulation, the regulation of the firm's own internal
self regulation, and will both fuel and be fuelled by
any trend towards the latter. Secondly, it argues that
risk based frameworks are not risk-free: whilst they
seek to manage risks they inevitably introduce their
own. Thirdly, risk based regulatory frameworks have the
potential both to expose and obscure key socio-political
and socio-economic choices as to the amount or types of
regulatory failures that an agency will tolerate, and
which in effect it is requiring society to tolerate.
'Risk based frameworks' are attempt to define what are
acceptable 'failures' and what are not, and thus to
define the parameters of blame.&
'The Emergence of Risk Based
Regulation and the New Public Management in the UK' [2005] Public
Law 512-549&
'Risk' is fast
becoming the central organising principle in regulation
and public service delivery. The article identifies two
key elements of this development: internal risk
management and risk based regulation, and argues that
together they form what may be termed a 'new public risk
management' (NPRM). This focuses on one strand of this
development: risk based approaches to regulation. It
briefly sets out its emergence in a number of regulatory
bodies, and then explores in depth the development of
risk based regulation in the Financial Services
Authority. It identifies the key motivations, the main
elements of the framework, and outlines some of its
outcomes to date. It then stands back from the case
study to consider some of the broader potential
implications of the move to risk based regulation. It
argues first, that they involve key choices as to how an
agency will translate and operationalise its objectives,
and what risks it decides not to focus its resources on
trying to prevent. In a risk based framework, these are
in effect decisions as to which types of failures an
organization is willing to tolerate, and which it is
not. Secondly, risk based frameworks, whilst they
emphasise certainty and knowability over uncertainty and
ignorance, are paradoxical. In their certainty they run
the risk of failing to enable the regulator to respond
to an unpredicted and unpredictable future. Thirdly,
risk based regulation interacts with another technique
of regulation which is much heralded in the literature:
that of 'meta-regulation'. As a result, risk based
regulation will both fuel and be fuelled by the current
vogue for focusing on firm's internal controls in the
successful operation of regulatory regimes. However, the
two can never fit together completely, for the
definitions of risk each employs may often be distinct.
Finally, it is argued that the moves to risk based
regulation introduce a new 'politics of accountability'.
In risk based frameworks, the choices as to which types
of failures to make are linked to attempts to define the
parameters of blame. Through risk based frameworks,
regulators are attempting to define what, to their
minds, are the acceptable limits of their responsibility
and hence accountability.
'Critical Reflections on Regulation'
(2002) 27 Australian Journal of Legal Philosophy 1-37 and
CARR Discussion Paper no. 17 (London: LSE, 2003)
Increasingly,
regulation is being seen as 'decentred' from the state,
and even from the well recognised forums of
self-regulation. A decentred analysis has several
strands, and seeing the nature and problems of
regulation from a decentred perspective can be very
stimulating. It opens up the cognitive frame of what
'regulation' is, enabling commentators to spot
regulation in previously unsuspected places. It can
prompt policy thinkers in academia and government to
consider a wide range of different configurations of
state, market, community, associations and networks to
deliver public policy goals. But a decentred
understanding of regulation also raises quite
fundamental questions of the nature and understanding of
regulation, the consequent role of the state, and our
understanding of law. It means we can no longer escape
the need to address the question of just what it is that
is being 'decentred', of what is it that we want the
concept of 'regulation' to do, and what some of the
implications of that decision might be. The answers to
these questions are at best contested and at worse
simply incoherent. It is a debate which is sorely
needed, however, and which it is the aim of the paper to
'Enrolling Actors in Regulatory
Processes: Examples from UK Financial Services Regulation' [2003]
Public Law 62-90&&
fragmentation and hybridisation of governance has been a
preoccupation of public lawyers and others for some
time. Commentators have focused variously on the
internal and organisational fragmentation of the
executive (the development of next step agencies, for
example, and the growth of new control relationships as
a consequence of the implementation of strategies of new
public management), on the fragmentation and
hybridisation of service delivery (contracting-out,
public-private partnerships, the private finance
initiative), and on the fragmentation and hybridisation
of regulation. Concerns have been both to map and
analyse the changing nature of the exercise of
governance functions and to address the issues of
accountability to which such changes have given rise.
The article focuses on regulation and suggests that we
build on existing analyses of regulation as a decentred
and fragmented activity by exploring the notions of
regulatory capacity and regulatory enrolment, and
provides illustrations using examples from the current
system of UK financial services regulation. In focusing
on regulatory capacity and regulatory enrolment, it is
suggested, an analytical framework can be developed
which has both prescriptive and descriptive dimensions,
and which may facilitate thinking on how regulatory
functions are and should be distributed between diverse
actors in a regulatory system.
'Regulatory Conversations' (2002)
29(1) Journal of Law and Society 163-196
The study of
regulation is characterised by a kaleidoscope of lenses
through which regulation is viewed, though little work
has been done on how they might be integrated, or
whether they are instead 'incommensurable paradigms'.
Nevertheless, this article proposes another perspective,
of discourse analysis. Regulation is in large part a
communicative process, and understanding regulatory
conversations is central to understanding the 'inner
life' of that process. Why then not look to discourse
analysis, that loosely defined body of theory that
ranges across the social sciences and humanities which
is concerned with the analysis of language and
communication? The article analyses five core
contentions of discourse analysis. These are first, that
the meaning and use of language vary with context and
with genre, and that the development of shared
linguistic practices entails co-ordination and forms the
basis of social action. Secondly, that communicative
interaction is representative and in particular produces
identities, which in turn affect social action. Thirdly,
that language frames thought, and produces and
reproduces knowledge. The fourth, closely related,
contention is that language is intimately related to
power: that it is marked by the values of social groups,
that it encodes perspectives and judgements, and can
instantiate certain perspectives or orthodoxies.
Finally, that meaning, thought, knowledge and power are
contestable, contested and dynamic. The article explores
these contentions in the different strands of discourse
analysis, and suggests how they might be further
explored in the regulatory context and what they might
add to current understandings of the dynamics of
regulatory systems.
'Proceduralizing Regulation:
Part II' (2001) 21 Oxford Journal of Legal Studies
The solution
frequently being advocated to a range of regulatory and
indeed constitutional questions is to devise procedures
for participation, for democratisation. . The aim of
this article is to explore just what the shift to
procedures and to participation might involve. The
article will appear in this journal in two parts. The
first part distinguishes between two possible forms of
proceduralisation, "thin" proceduralisation, based on a
liberal model of democracy, and "thick"
proceduralisation, based on deliberative models of
democracy. In exploring the latter, the article takes as
its starting point the work of Habermas. Given the
richness and complexity of his argument the development
of the notion of thick proceduralisation necessarily
occurs in part through a critique of his work, for it is
argued that although Habermas may provide an important
starting point, his work cannot also be the end point of
the debate. The second part of the article will discuss
the modifications that may need to be made for "thick"
proceduralisation to be adopted as a regulatory
'Decentring Regulation:
Understanding the Role of Regulation and Self Regulation in
a "Post-Regulatory" World' (2001) 54 Current Legal
This article
addresses three basic analytical questions: what is
'decentring regulation', what is 'self regulation' and
how does it fit in the decentring analysis, and what
meaning is given to 'regulation' to allow it
analytically to be 'decentred' - how do we know
'decentred regulation' when we see it? Decentring is a
term which is often used to encompass a number of
notions, and has both positive and normative dimensions.
It is used to express the observation that governments
do not, and proposition that they should not, have a
monopoly on regulation and that regulation is occurring
within and between other social actors: there is
'regulation in many rooms'. Decentring is also part of
the globalisation debate on the one hand, and of the
debate on the developments of mezzo-levels of government
(regionalism, devolution, federalism) on the other.
Decentring is also used in a positive sense to describe
the consequence of a particular analysis of social
systems, in which politics and administration are, like
law or economics, are described as being self
referentially closed sub-systems of society, incapable
of observing other systems except through their own
decentring is thus the removal of
government and administration from the conceptual centre
of society. Finally, developing from these observations
(and mixing metaphors), decentring can be used,
positively and normatively, to express 'de-apexing': the
removal of the state from the conceptual hierarchy of
state-society, and the move to a heterarchical
relationship in which the roles of governors and
governed are both shifting and ill-defined. The themes
of 'decentring' are reflected in a changed understanding
of regulation. In that changed understanding, self
regulation plays a particular role both in practical
policy debates and in more conceptual discussions. The
role ascribed to self regulation, however, differs quite
fundamentally in those debates. For some self regulation
is the solution to the limits of 'centred'
for others it is the challenge that has to be addressed:
regulation of self regulation is the new challenge. The
prescription is for governments to regulate self
regulation in a 'post regulatory' way. But what
conception of 'regulation' is thereby entailed? The
article deconstructs the notion of 'regulation' and
attempts to build an understanding of 'regulation' that
can withstand 'decentring'.
&not available via LSE
'Proceduralizing Regulation:
Part I' (2000) 20 Oxford Journal of Legal Studies
The first part
of this article set out two possible models of
proceduralisation. This second part of this article
begins to develop one of those forms, 'thick'
proceduralisation, building on but modifying Habermas's
model of deliberative democracy in two important
respects. First, it is argued that it is not sufficient
simply to call for deliberation for there is a real
likelihood that even if all deliberants can be brought
together true communication will be blocked by
difference in the modes of discourse, the
techniques of argument, language and validity claims.
Discourse may therefore have to be mediated through the
adoption of strategies of translation, mapping and
dispute resolution. Whether regulators can or should
perform such a mediating role remains however an open
question. Second, it is argued that deliberative modes
of policy formation and regulation are compatible with
more pluralist and polyarchical arrangements than
Habermas allows, and indeed that such arrangements may
need to be adopted for thick proceduralisation to become
operative.
Reports / discussion papers
'Criminalising Bank Managers' (Julia Black and David
Kershaw) September 2013
'The Commission on Banking Standards Report and Bank
Incentives: A Missed Opportunity' (Julia Black and David Kershaw)
September 2013
'Legal Risks and Risks to Lawyers' (Julia Black, LSE
and Karen Anderson, Herbert Smith Freehills LLP) June 2013
'Creating an ethical framework for the financial
services industry' (Julia Black, LSE and Karen Anderson, Herbert Smith
Freehills LLP) February 2013
'Regulation, Education and Training' (Legal Education
and Training Review Symposium, May 2012)
'Breaking up is hard to do : The
next stage' (Julia Black, LSE and Martyn Hopper, Herbert Smith LLP) May
Description of regulatory approaches to assessing
the effectiveness of regulatory activities at low-risk sites and
proposed good practice framework : Phase 2 report (SNIFFER, August 2011)
'Calibrating
Regulation', in Legal Services Board, Understanding the Economic
Rationale for Legal Services Regulation - A Collection of Essays&
(March 2011)
'Breaking up is hard to to: the future of UK
financial regulation?'& with Martyn Hopper, partner, Herbert Smith,
LLP (Law and Financial Markets P London School of E
Herbert Smith : December 2010)
'A Review of Enforcement Techniques', Appendix A, Law
Commission, Criminal Liability in Regulatory Contexts: A Consultation
Paper Consultation Paper No 195, HMSO, 2010.'Risk-based Regulation' in& The Future of the
Legal Services : Emerging Thinking, Legal Services Board, June 2010
'Legal and compliance risk management: Towards principles of best
practice: Roundtable one, 29 April 2008: Challenges of a changing
environment' (Herbert Smith / LSE, 2009)
'&Chancer&, &Failure& or &Trier&? Regulatory Conversations and the
Construction of Identities' Crime Narratives in Context Network
Seminar Papers (2008)
From Local to Global : The rise of AIM as a stock market for
growing companies :& a comprehensive report analysing the
growth of AIM, Sridhar Arcot, Julia Black and Geoffrey Owen,
September 2007&
Involving Consumers in Securities Regulation, prepared for
the Taskforce to Modernize Securities Regulation in Canada, June
A Legal Services Board: Roles and Operationalising Issues,
R.Baldwin, J.Black and M.Cave, July 2005
for backgroundand
for full text
The Development of Risk Based Regulation in Financial Services:
Canada, the UK and Australia : A Research Report, September 2004
Risk, Trust and Regulation : The Case of Pensions, Working
Paper for the National Consumers Council, March 2002
Managing Discretion (Published as: ARLC Conference Papers -
Penalties: Policy, Principles and Practice in Government
Regulation), June 2001