Introduction. A New Field: Comparative Law and Regulation
The contemporary regulatory process is global. Markets and the problems they generate consumer privacy, chemicals safety, and many others cross borders and multiple national and international jurisdictions are called into action, sometimes in concert but just as often in competition. The new field of comparative law and regulation is devoted to understanding this 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 (and divergence) 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.