Regulatory Analysis in Corporate Law

Drawing on recent experiences in the US, UK, and EU, this article suggests that regulatory analysis of corporate law policies, as currently understood and applied, suffers from severe weaknesses. The effects of proposed corporate law policies are often difficult to predict and even more difficult to quantify, which negatively impacts analytical reliability. Moreover, given its nature and strong intersections with economic, societal and political issues, corporate law is less amenable to technocratic assessments than other areas of law. Based on three case studies, the article explores these problems. It outlines a revised 'procedural' view, suggesting that regulatory analysis in corporate law should be understood as a process for enhancing information, transparency, and monitoring, independently of specific normative criteria. This leads to several implications. In short, regulatory analysis should combine quantified analysis with leeway for regulatory judgment and focus on increased consultation, critical engagement, review, and transparency as the dominant guiding factors.