What question did this study set out to answer?

This article aims to demonstrate that regulatory capture is a stable outcome of discretionary regulatory systems.

June 2, 2026Open Access

Regulatory Capture as Evolutionarily Stable Strategy: Toward a Regulatory Capture Presumption in Discretionary Regulation

Key Points

This article aims to demonstrate that regulatory capture is a stable outcome of discretionary regulatory systems.
Develops a theoretical framework using constructs like Parasitic Spontaneous Order and Collective Moral Disengagement.
Models mechanisms that lead to regulatory capture as an evolutionarily stable strategy.
Connects the regulatory capture presumption to legal frameworks and provides empirical illustrations from various datasets.
Identifies a structural asymmetry in legal presumptions favoring weaker parties, absent in discretionary regulatory contexts.
Demonstrates that regulatory capture is not merely an anomaly but a predictable state under certain conditions.
Operationalizes a verifiable regulatory capture presumption activated by specific structural conditions.

Abstract

This article argues that regulatory capture is not an anomaly requiring proof of conspiratorial coordination but a predicted equilibrium state of any discretionary regulatory system operating under the structural conditions described here. Drawing on four theoretical constructs developed in prior work in this research program: Parasitic Spontaneous Order (PSO), Asymmetric Intentionality Theory (AIT), Heteronomous Bayesian Updating (HBU), and Collective Moral Disengagement (CMD). The article models the sequential mechanisms through which extractive rents become an Evolutionarily Stable Strategy (ESS) in regulatory environments with high Constitutional Lock-in Index (CLI) values and weak ex ante accountability. The theoretical contribution is threefold: first, the article identifies a structural asymmetry in the doctrine of legal presumptions: existing in dubio rules operate in favor of the structurally weaker party in domains where that protection is needed, yet no equivalent presumption exists against discretionary regulation despite the regulator's structural power advantage; second, it argues that this absence is not an oversight but a predicted product of the same mechanism the article models; third, it operationalizes a Regulatory Capture Presumption (RCP) as a rebuttable presumption activated by three verifiable structural conditions. The article offers five falsifiable predictions and connects the RCP to Argentine positive law through Article 28 of the National Constitution, Articles 7(e), 7(f), and 12 of Decree-Law 19.549, and the risk-allocation logic of Articles 1757-1758 of the Civil and Commercial Code (applied analogically, given Law 26.944's exclusion of direct civil code application to State liability). Empirical illustrations draw on the author's own preliminary datasets (CLI estimates for Argentina, Brazil, Chile, and Spain; a 60-case CSJN review; and a survey of 23 labor reform attempts), which are reported in prior work in this research program and await independent replication. The framework extends prior work on convergent institutional evolution (Lerer 2026a) and collective moral disengagement as ESS (Lerer 2026b).

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