Responsive regulation and structural injunction

a possible dialogue?

Abstract

[Purpose] To analyze potential points of contact between the structural injunction and the theory of responsive regulation, assessing the compatibility of using responsive strategies – such as the tit-for-tat strategy, regulatory tripartism and nodal governance – in pursuing the objectives of structural injunction.

[Methodology/approach/design] Theoretical approach, based on a literature review of the theory of responsive regulation and the structural injunction, promoting a comparative analysis of their fundamental characteristics, similarities and differences. The study will also promote case analysis, seeking to identify elements that may confirm or refute the hypothesis raised.

[Findings] The flexibility of the procedural path and the relaxation of the rules of objective congruence and demand stabilization proposed for structural injunctions – aiming at consensual and dialogical construction of solutions for complex structural issues – enable the adoption of various atypical measures of execution and cooperation, which can be modified as necessary, depending on the evolution of restructuring during the process. Thus, the intrinsic flexibility and consensual nature of the structural injunction allow for the use of responsive strategies to better align the defendant(s) with the structural decision and encourage greater involvement in the restructuring project.

[Practical implications] The conclusion of this article holds significant practical implications, as it advocates for the use of responsive regulatory strategies – grounded in empirical and behavioral studies developed over decades by the theory of responsive regulation – to ensure greater effectiveness in achieving the objectives of structural injunctions.

[Originality/value] The article fills a gap in academic research by analyzing two highly relevant contemporary legal science topics in Brazil, which are seemingly opposites, seeking connections between them.