Regulatory discretion: structuring power in the era of regulatory capitalism

Abstract Discretion gives decision makers choices as to how resources are allocated, or other aspects of state largesse coercion deployed. Discretionary power challenges the rule law, first by transferring decisions from legislators departments, agencies and street-level bureaucrats secondly risking uniform application key fairness equality norms. Concerns find alternative decentred forms regulation gave rise new types regulation, sometimes labeled ‘regulatory capitalism’. Regulatory capitalism highlights roles a wider range actors exercising powers instruments. It includes also discretion, for example over automated making processes, formulation dissemination league tables use behavioural measures. This paper takes novel approach linking extending significant literature on these changing patterns regulatory administration with consideration modes deployment discretion. Using this specific lens, we observe two potentially contradictory trends: an increase in determining structuring administrative decision, leading more transparent discretion; increased processes which have potential producing less black box scenario.