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Full-Text Articles in Law
Data Breach (Regulatory) Effects, David Thaw
The Efficacy Of Cybersecurity Regulation, David Thaw
The Efficacy Of Cybersecurity Regulation, David Thaw
Articles
Cybersecurity regulation presents an interesting quandary where, because private entities possess the best information about threats and defenses, legislatures do – and should – deliberately encode regulatory capture into the rulemaking process. This relatively uncommon approach to administrative law, which I describe as Management-Based Regulatory Delegation, involves the combination of two legislative approaches to engaging private entities' expertise. This Article explores the wisdom of those choices by comparing the efficacy of such private sector engaged regulation with that of a more traditional, directive mode of regulating cybersecurity adopted by the state legislatures. My analysis suggests that a blend of these …
Enlightened Regulatory Capture, David Thaw
Enlightened Regulatory Capture, David Thaw
Articles
Regulatory capture generally evokes negative images of private interests exerting excessive influence on government action to advance their own agendas at the expense of the public interest. There are some cases, however, where this conventional wisdom is exactly backwards. This Article explores the first verifiable case, taken from healthcare cybersecurity, where regulatory capture enabled regulators to harness private expertise to advance exclusively public goals. Comparing this example to other attempts at harnessing industry expertise reveals a set of characteristics under which regulatory capture can be used in the public interest. These include: 1) legislatively-mandated adoption of recommendations by an advisory …