The recent economic crisis compels us to think how to avoid other future disasters. Since averting misconducts is more cost-effective than punishing them - due to the global social costs and the difficulties of restoring damages when the social harm has already occurred - regulation and legal control are currently regarded both from the academic world (IUC Report 2009) and the international politics (G8 2009) as highly appropriate in order to achieve effective prevention. Is gatekeeping still capable to offer a contribution to an effective preventive approach? According to the analysis provided by American Law and Economics literature, the gatekeeper strategy seems to have proved ineffective over and over again and ‘gatekeepers’ failure’ has been often pointed out as one of the main factors that led to past financial disasters such as Enron and the others (J.C. Coffee). Nevertheless, there is no evidence of this failure to be inherently related to the nature of the strategy itself, rather than it is a result of a particular way of conceiving and developing it. Perhaps, the frequency in the american economic crises could be read as the inadequacy of a particular gatekeeping model, not the failure of gatekeeping in itself. Consequently a question comes up - if the american gatekeeping model has in any way let us down, is there any other, more effective one to turn to? Several authors (B. Arruñada, R.J. Van den Bergh, U. Mattei) - based on Comparative Law and Economics surveys - recently pointed out the efficiency of many preventive measures established by civil-law countries in order to safeguard market development. Particular attention has been paid to the real estate market, a market that has been recently hit hard by the crisis in the U.S., while proving to be fairly strong in european civil-law countries. The authors especially focus on those legal institutions which check the reliability of data and the validity and legalty of transactions, stressing the crucial role accomplished by Latin notaries, and affirming that the notarial role can be justifiably considered as an outstanding cost-effective model of gatekeeping. However, defining Latin notaries as gatekeepers is not something that goes without saying - great differences exist between them and those professionals which are traditionally considered as ‘gatekeepers’ in common-law countries, so applying this american term loosely to such civil-law institution is perhaps a bit too simplistic. The issue at hand is not just a matter of terminology, since after the outbreak of the recent so-called ‘subprime crisis’, it has been claimed (R.J. Shiller) that the presence of a preventive control by impartial, public-minded professionals - such as the one performed by civil-law notaries - could have prevented the crisis, or at least reduced it, and the adoption of measures of that sort has been suggested in order to prevent new slumps. Current divergence and (possible) future convergence of both legal systems is therefore at stake. Hence the necessity of re-thinking traditional concepts about gatekeeping, looking for a common definition of the strategy and verifying if the ‘Latin model’ is really an effective, well-functioning one
