2016] REREGULATION AND THE REGULATORY TIMELINE 1499
as an industry is first regulated and later deregulated or subjected to
regulatory change.2 These metaphors all imply a binary regulatory process,
with regulation functioning essentially like a flip switch: either “on”
(regulation) or “off” (deregulation). Under this mentality, the decision to
regulate after a period of deregulation—what we refer to as reregulation3—
looks just like the decision to regulate an industry initially: in both cases,
regulation is merely “switched on.” From this perspective, the intervening
deregulation serves to roll back the clock, as if the initial regulation had never
Binary models of regulation capture much that is important about how
regulation functions. They are particularly helpful for emphasizing
distinctions between the two prongs of the “regulated” and “not regulated”
dichotomy, and for highlighting similarities within periods of regulation and
of non-regulation. They can also be useful for emphasizing the type of
political oscillation that is most likely to occur under a two-party political
system, and how such oscillation is likely to press upon administrative
2. See, e.g., Walter R. Burkley, Environmental Reform in an Era of Political Discontent, 49 VAND.
L. REV. 677, 678 n.4 (1996) (referring to the “oscillations in environmental regulation”); John
C. Coffee, Jr., The Political Economy of Dodd-Frank: Why Financial Reform Tends to Be Frustrated and
Systemic Risk Perpetuated, 97 CORNELL L. REV. 1019, 1029 (2012) (defining the phrase “Regulatory
Sine Curve” as characterizing regulation in, among other industries, finance and environmental
regulation); Richard D. Cudahy, Retail Wheeling: Is This Revolution Necessary?, 25 ENERGY L.J. 161,
163 n.16 (2004) (referring to the “pendulum-like oscillation . . . between regulation and
competition”); Patrick McGinley, Collateral Damage: Turning a Bli nd Eye to Environmental and Social
Injustice in the Coalfields, 19 J. ENVTL. & SUSTAINABILITY L. 304, 385 n.265 (2013) (referring to the
“repeating cycle” of environmental safety regulation); Anne Joseph O’Connell, Political Cycles of
Rulemaking: An Empirical Portrait of the Modern Administrative State, 94 VA. L. REV. 889 (2008)
(tracking the “cycles” of rulemaking by following political transitions); Larry E. Ribstein,
Commentary, Bubble Laws, 40 HOUS. L. REV. 77, 79–83 (2003) (developing a “cycle” of financial
regulation). On occasion both the regulatory framework and the accompanying industry
response are described this way. See, e.g., Frank Partnoy, Shapeshifting Corporations, 76 U. CHI. L.
REV. 261, 284–85 (2009) (analyzing the cycling of corporations between public and private
ownership due to changing regulatory environments).
3. Although “reregulation” is a term occasionally used in the literature, in the past, it has
lacked any generally accepted definition. See, e.g., Nicole Fradette et al., Project: Regulatory Reform:
A Survey of the Impact of Reregulation and Deregulation on Selected Industries and Sectors, 47 ADMIN. L.
REV. 461 (1995) (writing a 200-page study that never defines or expands on the term); Barry R.
Weingast, Regulation, Reregulation, and Deregulation: The Political Foundations of Agency Clientele
Relationships, 44 LAW & CONTEMP. PROBS. 147 (1981) (failing to define or expand on the term);
see also ALAN GART, REGULATION, DEREGULATION, REREGULATION: THE FUTURE OF THE BANKING,
INSURANCE, AND SECURITIES INDUSTRIES (1994) (using “reregulation” variously to encompass our
view of reregulation and as what we call regulatory reform). But see Jeff Schwartz, The Twilight of
Equity Liquidity, 34 CARDOZO L. REV. 531, 600–02 (2012) (using “reregulation ” to refer to the
period of regulation following deregulation, as the term is used in this Article).
4. See, e.g., O’Connell, supra note 2 (tracking the “cycles” of administrative regulation as
they are affected by political oscillation between two parties).