Abstract

When regulators make decisions in the face of uncertainty, what gives legitimacy to their decisions? This question arises more and more frequently as globalized markets and new technologies crash through pre-existing social and political fault lines. In the myriad contexts of regulation, the same refrain plays over and over—governments must make high-stakes regulatory choices that implicate poorly understood risks. Trust clearly plays a role in facilitating agency legitimacy, but what is the relationship between law and trust?

While trustworthy regulators may enhance social resilience, uncertainty erodes public trust and alienates citizens. This grim reality is reflected in declining levels of trust in government institutions. Loss of trust undermines not only regulatory effectiveness, but also society's resilience—its capacity to persevere and even to thrive in the face of multiple, unpredictable risks.

This Article offers a framework for "regulatory trust"—the unique form of social trust invoked when regulatory agencies make decisions under conditions of uncertainty. In doing so, it examines what regulatory trust means, why it matters, and how it can be produced, maintained, and restored. The resulting framework identifies the key components of regulatory trust and explores means to cultivate the trust necessary to allow regulatory agencies to govern effectively in the face of fundamental uncertainty.

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