How To (De)Regulate A Profession? Quantifying, Comparing, And Guiding Notarial Competition Policies Through Regulatory Indicators

ABSTRACT This article questions how economics approaches notarial regulation through a review of the Organization for Economic Co-operation and Development's (OECD) Product Market Regulation notarial regulatory indicator. After summarizing the literature on the economics of notaries, the article advances three critiques to guide the refinement of the current indicator and the design of a second regulatory commensuration. The first critique is conceptual. It shows that the indicator is built with a market-oriented perspective that associates regulation with a loss of competition. The article derives a best-practice model from the indicator and questions its economic consequences. Although this model defines a potential regulatory horizon for deregulation policies, it neither guarantees specific outcomes in terms of competition and quality nor clarifies the object it compares. The second critique is methodological. Although the indicator assumes continuity between competition and regulation, it fails in generating such continuity. Its construction implicitly over-weights the regulation of professional firms leading to inertia and limited variability, and overlooks several competition-damaging variables. The third critique regards policy implications. Through the comparison of two reforms of the notary profession, the Dutch Notary Act (1999) and the French ‘Loi Macron' (2015), the article highlights the indicator's normative biases. Not only does the indicator favour deregulation over competition, but it also overlooks several welfare effects, including the costs of deregulation. Building on these three critiques, the article outlines guidelines for a more robust notarial regulatory indicator, and proposes an alternative benchmark for regulation based on professional functions.