Julia Black

Julia Black

Email: j.black@lse.ac.uk
Administrative support: Amanda Tinnams
Room: Columbia House 1.00
Tel. 020-7955-7936

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.

She is Director of the Law Department's Short Course on Financial Services and Markets Regulation.

She is also a research associate of LSE's Centre for the Analysis of Risk and Regulation (CARR), based at LSE.

see also Julia Black's LSE Experts page
 

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.

 
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; a member of the SRA’s Regulatory Risk Committee; and an academic advisor to the Bank of England's Review of Fair and Efficient Markets.

Julia is also General Editor of the Modern Law Review and on the editorial boards of Law and Policy, Regulation and Governance and the Journal of Financial Regulation.

 
Books  

Regulatory Innovation: A Comparative Analysis (Cheltenham: Edward Elgar, October 2005); co-edited with M. Lodge and M. Thatcher

Regulatory Innovation - coverMuch 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).

Rules and Regulators - coverJulia 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 services.

   
Selected articles
and chapters in books
 

'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'  LSE Law, 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 (2012) 75 (6) pp.1037-1063

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 29/2012

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' LSE Law, 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’ (2012) 6 (2) 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’ (2012) 6 (1) 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)

Restructuring Global and EU Financial Regulation: Capacities, Coordination and Learning, LSE Law, 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, 2010)

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. 2010, 4(4)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, and culture; (2) regulation's institutional environments; (3) interactions of regulatory controls; (4) regulatory performance; 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'. LSE Law, Society and Economy Working Paper Series, WPS 14-2009, July 2009

Legitimacy is not just a normative challenge for regulators; 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 2009, 3(1), 1-2.

'Constructing and contesting legitimacy and accountability in polycentric regulatory regimes' Regulation & Governance (2008) 2, 137–164

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' (2008) 2 (3) 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?" (2008) 2(2) 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' (2008) 71(1) 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 of firms; the institutional environment and performance of the regulatory regime; the different logics of regulatory tools and strategies; and to changes in each of these elements. The approach pervades all the different tasks of enforcement activity: detecting undesirable or non-compliant behaviour; developing tools and strategies for responding to that behaviour; enforcing those tools and strategies; assessing their success or failure; 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 dark.

'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-governmental regulators; (2) risk-based regulation; and (3) the increased enforcement and sanctioning powers of governmental regulators.

'Making a Success of Principles Based Regulation' with M. Hopper and C. Band, (2007) 1 (3) 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 promote.

'Enrolling Actors in Regulatory Processes: Examples from UK Financial Services Regulation' [2003] Public Law 62-90  

The 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 33-59

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 strategy.

'Decentring Regulation: Understanding the Role of Regulation and Self Regulation in a "Post-Regulatory" World' (2001) 54 Current Legal Problems 103-147

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 distorted lenses; 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' regulation; 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'.

'Proceduralizing Regulation: Part I' (2000) 20 Oxford Journal of Legal Studies 597-614

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; 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 2012

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 Project; London School of Economics; 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 2006

A Legal Services Board: Roles and Operationalising Issues, R.Baldwin, J.Black and M.Cave, July 2005

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