71 Am. U. L. Rev. 2111 (2022).

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Abstract

This Article examines a fundamental failure of process in lawmaking: the overreliance of lawmakers on economists and economic scholarship when designing and implementing financial regulation, to the virtual exclusion of lawyers and legal scholarship. This overreliance leads to regulation that often is based on theoretical models and assumptions that are poorly informed by experience and may not withstand real-world testing. The Article examines how to improve financial regulation by better integrating legal scholarship and lawyerly insights into the lawmaking process. Among other things, that will require law professors to gain the attention, and earn the respect, of lawmakers by writing more reality-based articles and publishing them not only in traditional law reviews but also in more accessible formats and policy-oriented forums.

* Stanley A. Star Distinguished Professor of Law & Business, Duke University School of Law; Senior Fellow, the Centre for International Governance Innovation (CIGI). We thank Anat Admati, Neal E. Devins, and Lorilee A. Medders for valuable comments and Kate Carter, Ann (Zhouanan) Du, and Alicia Faison for invaluable research assistance.

** J.D., Duke University School of Law, magna cum laude, 2020. Executive Editor, Duke Journal of Comparative and International Law.