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The ‘Principles’ Paradox*

Published online by Cambridge University Press:  20 August 2009

Steven L. Schwarcz
Affiliation:
Stanley A. Star Professor of Law and Business, Duke University School of Law
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Abstract

This essay, prepared for a University of Cambridge conference on ‘Principles Versus Rules in Financial Regulation’, posits a new issue in that debate. Although principles-based regulation is thought to more closely achieve normative goals than rules, the extent to which that occurs can depend on the enforcement regime. A person who is subject to unpredictable liability is likely to hew to the most conservative interpretation of the principle, especially where that person would be a potential deep pocket in litigation. This creates a paradox: unless protected by a regime enabling one in good faith to exercise judgment without fear of liability, such a person will effectively act as if subject to a rule and, even worse, an unintended rule.

Type
Articles
Copyright
Copyright © T.M.C. Asser Press and the Authors 2009

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References

* © Copyright 2008 by Steven L. Schwarcz.