Debates on whether to simplify financial regulations are often framed as if complexity were a technical inconvenience –an unfortunate by-product of legislative over-exuberance that could be corrected by pruning rulebooks and consolidating texts. Yet the reality is not so simple. Complexity is not merely an accumulation of rules; it is the way modern regulatory states – on both sides of the Atlantic – organize uncertainty, distribute interpretations, and embed learning into law.

What needs to change, therefore, is not simply the scale of regulation, but the jurisprudence of how complexity is governed. The European Union’s turn towards “simplification” provides a vivid case study, but the underlying dynamics are shared with the United States. Indeed, some of the most salient debates in contemporary U.S. administrative law – Chevron deference, the constitutional status of delegation, and the Major Questions Doctrine—mirror, in doctrinal form, the same tensions that European lawyers encounter in the governance of regulatory regimes.

Complexity as a Governance Condition, Not a Defect

The density of European regulations – particularly in financial markets—has often been criticized as excessive: too many layers, too many definitions, too many delegated acts. But once we acknowledge that financial markets are non-linear, globalized, technologically dynamic systems, we realize that complexity is structural. It is the medium through which the regulatory state governs.

The same insight applies, though through a different constitutional idiom, to the United States. Federal financial regulation – from the Federal Reserve’s oversight practices to SEC interpretive bulletins – functions as a layered system of statutes, rules, guidance, and supervisory expectations. Attempts to reduce complexity are generally undertaken through the courts, regulated entities, or inter-agency negotiation. Yet, simplification cannot eliminate complexity without disabling the mechanisms through which law adapts to its environment.

Delegation, Discretion, and Reflexive Clarity: The Hidden Common Ground

A jurisprudence of reflexive clarity reframes the simplification debate around a more legally coherent proposition: that regulatory transparency depends not on reducing complexity, but on rendering the relationships among norms, institutions, and interpretive authorities intelligible. The law becomes clear not because it is thin, but because its structure can be understood.

This reframing naturally affects U.S. debates about the Chevron case. Chevron deference – yielding to the expertise of administrative agencies – for decades provided a mechanism for allocating interpretive authority in the face of statutory ambiguity. It assumed that complexity was a natural feature of modern governance and required an administratively competent interpreter. In doing so, it supplied a stabilizing principle: When Congress legislates broadly and markets evolve rapidly, agencies must exercise discretion, and courts must defer to that discretion.

The recent elimination of Chevron deference reopens a fundamental question: Who’s interpretation of complex regulations holds sway? A jurisprudence of reflexive clarity does not take sides. Instead, it illuminates the stakes: Whether interpretation lies primarily with courts or with agencies, legitimacy must come from transparent reasoning, structured delegation, and visible pathways of accountability.

The Nondelegation Debate and European Technocracy

The American nondelegation doctrine – the resurgent principle that limits Congress’ power to delegate its legislative authority – expresses an anxiety about indeterminate grants of regulatory power. Critics argue that excessive delegation erodes democratic accountability and allows agencies to function as quasi-legislators.

European lawyers will recognize the theme. The EU’s reliance on delegated acts, implementing measures, and soft-law instruments attracts scrutiny from member states, courts, and scholars who fear that technocratic entities escape political oversight. Yet the constitutional design of both systems acknowledges a practical truth: Complexity requires expertise, and expertise requires discretion.

The EU manages this tension through established procedures – —consultations, judicial review, and the “comitology” process of making EU law through consultation with member-state committees – the U.S. frames it through constitutional doctrine. But the underlying governance problem is the same. A reflexive clarity approach thus provides a comparable vocabulary: delegations are legitimate when the system can publicly articulate why discretion is necessary, how it is exercised, and what feedback shapes its ongoing use.

The Major Questions Doctrine: A Jurisprudence of Epistemic Anxiety

The Supreme Court’s creation of the Major Questions Doctrine introduces a new threshold into U.S. regulatory law: agencies may not address matters of exceptional economic or political consequence unless Congress has spoken with unmistakable clarity. The doctrine reflects a deep concern that agencies have accumulated too much interpretive and policymaking power in areas where society has the most at stake.

This trend resonates strongly with European concerns about technocratic overreach. The politics of interventions by the European Securities and Markets Authority, the contested use of Q&As and guidelines, and the ever-expanding scope of detailed “Level 2” measures all reflect the same underlying debate: How much interpretive power should specialized entities wield when regulatory stakes are systemic?

A reflexive clarity framework helps illuminate the parallel. It does not deny the significance of major questions. Rather, it treats them as points where transparency, justification, and accountability must be intensified. Instead of insisting that such questions be decided through textual minimalism, it argues that they require enhanced institutional reflexivity – structured deliberation, transparent reasoning, and robust mechanisms of oversight.

A Shared Transatlantic Agenda

Once these parallels become apparent, it becomes clear that the European Union and the United States confront a shared constitutional predicament. Both must learn to govern complex markets through institutions whose legitimacy derives not from the illusion of simplicity, but from their capacity to learn, to reason publicly, and to render their own operations intelligible. From this realization emerges a strikingly convergent policy agenda. Each system must cultivate regulatory techniques capable of revealing the genealogy of norms and the logic that underpins their delegation. Both must strengthen the institutional infrastructures through which rules, guidance, and interpretive practices are mapped, allowing the regulatory order to display the relationships among its parts. And each must commit to gradual evidence-based recalibration, ensuring that interpretive authority evolves in accordance with structured feedback rather than episodic improvisation.

In short, the future of financial governance – European or American – does not lie in shrinking the regulations, but in governing complexity through disciplined reflexivity: a systemic approach that makes the allocation of authority, the rationale of regulatory choices, and the feedback mechanisms that adjust them over time transparent and intelligible.

A Common Constitutional Future

The call for simplification, whether expressed through better regulation in the EU or deregulatory rhetoric in the U.S., misunderstands the constitutional structure of modern regulatory states. What both systems require is not fewer rules, but rules that are clear and justified and for which institutions are accountable. Chevron, nondelegation, and the Major Questions Doctrine are not merely doctrinal debates; they are expressions of a deeper constitutional anxiety about how discretion, expertise, and democratic legitimacy coexist.

A jurisprudence of reflexive clarity – one that emphasizes institutional learning and transparent reasoning – offers a path forward. It allows both the EU and the U.S. to regulate complex markets without succumbing to the illusion that complexity can be eliminated. And it provides a shared vocabulary through which transatlantic regulatory systems can confront, and ultimately govern, the challenges of a world in which clarity must be earned rather than presumed.

Maria Lucia Passador is a professor at Bocconi University, Department of Law. This post is based on her recent article, “Reflexive Simplification: The Governance of Clarity.”