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This paper explores the possibility that a developing form of regulatory governance is also sketching out a new form of anticipatory regulatory democracy. 'Competitive supra-governmental regulation' is largely driven by non-state actors and is therefore commonly viewed as suffering a democracy deficit. However, because it stresses broad participation, intensive deliberative procedures, responsiveness to state law and widely accepted norms, and competition among regulatory programs to achieve effective implementation and widespread public acceptance, this form of regulation appears to stand up relatively well under generally understood criteria for democratic governance. Nonetheless, a more satisfactory evaluation will require a much better understanding of which programs win regulatory competitions, and why.

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Chicago Journal of International Law

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Originally appearing in the Chicago Journal of International Law, 8 Chi. J. Int'l L. 513 (2008). Reprinted with permission from the University of Chicago Law School. Also available at Chicago Unbound.