Responsive enforcement in innovation-intensive markets: proceduralization as a condition of legitimate adaptive governance

Abstract

Technology-intensive markets challenge traditional models of regulatory enforcement. Sanction-centered, command-and-control approaches may generate overdeterrence, adversarial escalation, and chilling effects on innovation. At the same time, adaptive instruments such as responsive regulation and regulatory sandboxes raise concerns about opacity, unequal treatment, and administrative capture. This article examines how these instruments can remain legitimate within a constitutionalized administrative order. Through a conceptual and doctrinal analysis drawing on administrative law, regulatory theory, and technology governance scholarship, it argues that the core issue is not whether regulators should choose rigidity or flexibility, but under what institutional conditions discretionary power can be lawfully exercised. The article advances the claim that proceduralization is the legal infrastructure of adaptive governance. By structuring decision-making through reason-giving, transparency, participation, monitoring, and reviewable constraints on discretion, proceduralization converts regulatory flexibility into accountable public action. It enables responsive enforcement and experimental governance to support innovation and learning without collapsing into opaque discretion, selective privilege, or punitive rigidity.