Updated 11/18/09
Robert B. Ahdieh
(Professor of Law and Director, Center on Federalism and
Intersystemic Governance, Emory University School of Law)
The Visible Hand: Coordination Functions of the
Regulatory State
Since its emergence amidst the
industrial revolution, the administrative state has been conceived
as a response to a discrete set of potential market failures,
including negative externalities, natural monopolies, and public
goods problems. In this standard account, the regulatory state
brings to bear an array of coercive measures, designed to alter the
dominant incentives of individuals and institutions to defect from
socially optimal equilibria, in the pursuit of private gain. This
is the familiar story of environmental law, labor law, product
safety regulation, and other important domains of the modern
administrative state.
To a significant and growing degree, however, the demands
of the social and economic order - especially in modern
industrialized states - sit uneasily with this account. In the
creation and evolution of networks - from the internet backbone to
the electricity transmission grid - state coercion has little role
to play. In the selection of standards for high-definition
television and wireless communication, there is no dominant
strategy of defection. Likewise, with respect to topical aspects of
financial regulation, including questions of market structure and
responses to the financial crisis in which the global economy is
presently engulfed - questions I will emphasize herein, by way of
example.
Looking to a corner of the game theory literature
relatively less appreciated in the legal literature, this
manuscript posits a shift from Prisoner's Dilemma to "coordination
game" dynamics in the modern social and economic order, and
suggests we need a new account of the regulatory state that mirrors
this shift. Negative externalities, tragedies of the commons, and
similar Prisoner's Dilemmas at work in traditional accounts of the
administrative state may help to justify prevailing conceptions of
command-and-control regulation directed to individual incentives to
defect from efficient results.
Where coordination dynamics are at work, however, in
internet regulation, in standard-setting for emerging technologies,
in telecommunications law, in financial regulation, and the like, a
distinct conception is in order. In the modern social and economic
order, non-coercive rules, directed to group interactions rather
than individual incentives, designed to shape expectations and
facilitate the creation and dissemination of information, and
functioning in the service of heightened innovation, represent an
increasingly important part of the work of the regulatory state. We
may, as such, stand at the cusp of the emerging Modern Coordination
State.
Lisa Alexander (Assistant Professor of Law,
University of Wisconsin Law School)
Stakeholder Participation in New Governance:
Lessons from Chicago's Public Housing Reform Experiment
The efficacy of the public-private partnership as a
tool for social reform is the subject of continued scholarly and
public debate. New governance theory, an increasingly popular form
of jurisprudence, constructs an optimistic vision of stakeholder
collaboration in public - private partnerships that justifies the
use of the public-private partnership in regulatory reform. New
governance scholars contend that recent governance trends such as
devolution, deregulation, decentralization, and privatization
create opportunities for previously marginalized stakeholders to
more fully participate in public problem-solving. New governance
scholars expect that both public and private stakeholders, with
differing interests, skills and objectives, will effectively
collaborate to solve public problems in the absence of traditional
formal legal protections. New governance’s implicit promise is
that traditionally marginalized stakeholders, such as poor public
housing residents, will be empowered as a result of their
participation in social reform. This Article examines stakeholder
participation in Chicago’s landmark ten year HOPE VI public
housing reform experiment as a test of these claims. Chicago’s
reform process is a national example as other cities replicate
Chicago’s model. Specifically, this Article examines the effect
of social fissures along race, class and gender lines on the
participation of public housing residents in Chicago’s urban
reform plan. This micro-study of Chicago’s process reveals that
empowered stakeholder participation is difficult to achieve under
conditions of social conflict in the absence of traditional
rights-based protections. This Article proposes a balance between
'hard-law' and 'soft-law' measures to provide a public law
framework for future national HOPE VI reform. These recommendations
may guide future new governance reform efforts that include
traditionally marginalized stakeholders in public - private
collaborations.
Kenneth Armstrong (Professor in European Union
Law, Queen Mary University London School of Law) and
David Trubek (Professor of Law Emeritus, Senior
Fellow, Center for World Affairs and the Global Economy (WAGE),
University of Wisconsin)
The Role of the European Court in Public Law
Litigation: Destabilizing Social Sovereignty and Mandating
Alternative Processes
Laval and its progeny hold that Art 49 and the Posted Workers
Directive strictly limit the ability of host countries to apply
their labor laws to posted workers and of unions to take collective
action. Critics argue that the ECJ has unleashed wage competition
in the higher wage countries thus undermining national solidarity.
They demand that host countries have near plenary authority over
posted workers. But others fear this would largely exclude low wage
country firms from high wage labor markets thus denying accession
countries the benefit of comparative advantage. The resulting
conflict and standoff show the limits of the current judicial
method. The court has struck down practices that seem unduly
exclusionary but has not created a legitimate structure to replace
them. Because a satisfactory solution must involve negotiation by
affected stakeholders including those from outside the host state,
take account of the diversity of national labor markets and labor
laws, and accommodate conflicting interests, general rules are
insufficient to deal with the posted workers problem and the Court
by itself cannot solve the problem. To do that, we propose an
alternative approach that involves both a reconceptualization of
the judicial role and the employment of new governance mechanisms
to work out local and diverse solutions. Drawing on Sabel and
Simon's work on "public law litigation" we suggest that the ECJ
should concentrate on destabilizing those regimes that appear
exclusionary and rely on alternative processes to craft
non-exclusionary solutions for various national and sectoral labor
markets. We suggest ways that a shared regime of judicial
monitoring and collective bargaining might be created that would
achieve these ends and call on labor lawyers and new governance
scholars to work together to develop such a regime.
Diamond Ashiagbor
(Reader in Laws and Director of Research Studies, University
College London)
Complex Discrimination and New Governance in the
EU
Within the European Union, the value of
the move to new governance approaches to promoting equality comes
from the acknowledgement that a focus on (traditional forms of)
litigation and ex post rule enforcement has been inadequate to
alter managerial discourse or restructure internal labour markets;
that such objectives might well be better achieved through
retaining legal remedies in the background, whilst 'mainstreaming'
values such as equality and diversity. Diversity mainstreaming has
the potential to focus attention on how equality law does or should
interact with organizational norms to combat intersectional
discrimination. However, it is problematic if, in the wake of the
Lisbon Strategy with its focus on the achievement of a competitive
economy and full employment, diversity at EU level is
conceptualized as primarily about improving organizational
competitiveness and efficiency, as evidenced, for example, in the
frequent references to 'the business case' for diversity, since
such a conceptualization serves merely to reflect or reinforce
existing managerial priorities. This paper argues that 'hybrid'
approaches to regulation, which combine 'old governance' mechanisms
(such as the Race Directive) and alternatives to hard law, such as
gender mainstreaming and diversity management, have the potential
to provide a stronger framework for internalizing equality values,
and one better suited to combating intersectional or
multidimensional discrimination.
Wendy Bach
(Instructor & Clinical Supervising Attorney, City University of
New York School of Law)
Governance,
Accountability, and the New Poverty Agenda
We are living in a remarkable moment in the
history of poverty policymaking and governance in the United
States. Several trends are converging. First, in the wake of
welfare reform, we face a dismantled welfare state and a society in
which millions of poor people are trapped in an ever more perilous
low wage labor sector. Second, on all levels of government there is
a movement toward programs designed to help families move out of
poverty. Third, joining a worldwide trend, the governance structure
of social welfare programs has radically shifted. Increasingly,
programs are characterized by abandonment of traditional legal and
rule making structures. Experiments in policy, program structure
and governance frameworks proliferate. Despite these enormous
shifts, new programs remain, like their predecessors, complicit in
perpetuating subordination along the axis of race, class and
gender. New York City recently launched Opportunity NYC, a new
experimental poverty program. The governance structure of
Opportunity NYC hews closely to the tenets of new governance
theory, particularly in its emphasis on experimentation and
evaluation as a central component of the program design. This
article argues that the Opportunity NYC program and research design
has imbedded within it an untestable, biased, and for the poor
families in the program, enormously costly political compromise.
The program is a "conditional cash transfer" program, meaning that
participants receive cash on the condition that they comply with
behavioral mandates. For example participants receive funds if they
go to the doctor, go to school or stay employed. The program will
be evaluated for its ability to make an impact in the short and
long term economic prospects of the lives of its participants.
However, because of the lack of an appropriate control group,
researchers will not be able to test what is arguably the central
programmatic assumption: that cash transfers need to be conditioned
on behavior in order to positively impact long-term economic well
being. As a result, at the end of the research, if the program is
"successful" it will, at best, provide additional support for the
already politically popular position that receipt of assistance
must be linked to behavioral control. For poor communities
struggling against substantial systemic obstacles, this is both
another example in the long history of using poverty policy to
control the behavior of poor women of color and a tremendously
costly flaw in the research design. For new governance scholars,
this story offers a cautionary tale about the possible complicity
of new governance frameworks in gender, race and class
subordination. If also reinforces the crucial point that ensuring a
substantive role for poor communities in program design and
evaluation is essential.
The article proceeds as follows. To set the framework for
this discussion, Section One describes two trends in domestic
poverty policy - first the much discussed and documented
abandonment of a commitment to maintaining a social safety net and
the newer, albeit limited and politically constrained commitment to
designing poverty policy that attempts to move some out of poverty.
Section Two examines the new poverty policy through the lens of
governance structure and describes the shift to structures that
mirror new governance theory. Having discussed the overall trends
in poverty policy and governance, Section Three turns to the case
study of Opportunity NYC. Opportunity NYC provides a critical
opportunity to assess the relationship between the shift to new
governance structures and the continuation of gender, class and
race subordination in poverty policy. It sheds particular light on
the way in which purportedly objective evaluations can perpetuate
subordination absent the participation of poor communities in the
governance framework. Finally, turning to possible solutions,
Section Four examines a separate global trend: the widespread
experiments in creating what Archon Fung and Eric Olin Wright term
"deep democracy," a set of governance experiments that attempt to
deepen and render more substantive the participation of poor
communities in governance. Drawing on extensive studies of these
experiments and the lessons learned from the examination of
Opportunity NYC, Section Four distills some of the essential
governance features that facilitate effective participation and
suggests that these features must be present if new governance
regimes are to effectively serve poor communities.
Lisa Blomgren Bingham
(Professor and Keller-Runden Professor of Public Service, Indiana
School of Public & Environmental Affairs)
The Next Generation of Administrative Law:
Building the Legal Infrastructure for Collaborative Governance
In previous work, I argued that
deliberative democracy, collaborative public or network management,
and appropriate dispute resolution share a related role in the
policy process, specifically, they provide ways for citizens,
stakeholders, and networks of public, private, and nonprofit
organizations to exercise voice and to collaborate in governance.
Together, they constitute collaborative governance. I described how
these new forms of participation operate across the policy
continuum, including legislative, executive, and judicial
functions. I briefly surveyed existing legal infrastructure and
argued that it provides constraints, obstacles, or barriers to
collaborative governance.
In this paper, I will build on that work to address how we
need to revise our legal infrastructure to facilitate collaborative
governance. While this problem exists at the local, state,
national, and transnational levels of governance, in this next
piece I will focus on federal administrative law in the United
States. I am engaged in a comprehensive survey of how the US Code
and Code of Federal Regulations use terms like public
participation, civic engagement, and citizen involvement. I am also
engaged in a related empirical research project on what federal
agency offices of general counsel perceive as obstacles or
barriers. For example, some counsel have advised agency personnel
that they cannot use or participate in blogs for rulemaking,
because it is not clear that comments in the blogs are intended as
formal comments on a proposed rule; they may simply be responses to
someone else's blog entry. Similarly, some agencies have explored
using large scale deliberative forums, for example, the
AmericaSpeaks 21st Century Town Meeting format that engages 1,000
to 5,000 people. However, they have been advised this method is
inappropriate for rulemaking because it is impossible to capture
all the simultaneous dialogue comments of thousands of people in
the rulemaking record.
I intend to develop and propose ways to address these and
other asserted obstacles or barriers in federal administrative law.
These solutions may provide models to address analogous problems in
state and local administrative law. They may also assist in the
process of conceptualizing and building legal infrastructure for
collaborative governance in other national and transnational
systems.
Bojan Bugarič
(Associate Professor, University of Ljubljana School of Law)
Regulating Public Services in the European Union:
Old, New or Hybrid Form of Governance
After the period of almost consensual liberalization of
economic utilities, (telecoms, post, energy) where both
conservative and social democratic parties stood behind the
project, some more recent attempts to liberalize services of
general interest such as health care and education, have strongly
divided political Europe. New legislative proposals such as
Services Directive and Cross Border Health Directive have opened a
real political battle between the Left and the Right in the EU. In
one of its strongest political statements the Party of European
Socialists has accused its opponents for undermining the solidarity
of public services.
With the new legislation predominantly limited to market
compatibility requirements of four freedoms, the constitutional
basis for a new Social Europe seems weak. But that is only because
we fail to realize the potential of new forms of governance,
different from the CCM (classic community method), embodied in so
called hard law of directives and regulations. According to the new
governance literature, more experimentalist and decentralized soft
law (OMC) promises a new path to Social Europe. However, after
almost a decade of experimentation, little new Social Europe is on
the horizon, the critics of the new governance approach argue. As
some critics of the new forms of governance argue, there is nothing
wrong with learning form others, with experimentation, innovation
and institutional change. To be successful, these new forms of
governance need more firm grounding in constitutional/statutory
social principles.
Does such constitutionalization of Social Europe represent a
return to old regulation? I argue that by adopting the hybridity
thesis we find less tension between the old and the new forms of
governance. The case of regulation of public services shows how law
and new governance are mutually interdependent and mutually
sustaining.
The Party of European Socialists’ proposed Framework
Directive on Services of General Economic Interest represents
neither wholly old nor enough new form of governance. Nonetheless,
it represents a hybrid form of regulation promising to offer a
productive combination of both forms of governance. While its basic
aims are articulated in highly abstract and relatively simple
terms, it contains several “hard law” rules which more clearly
“equalize” the alleged asymmetry between negative and positive
integration. While combining both highly abstract and more precise
rules (hard law), the proposed Directive leaves room for
experimentation and learning.
The lessons from “economic” public services could be
applied to “services of general interest” as well. Following
Harvey & Trubek (2006) proposal in the case of cross border
health services, I argue that similar approach combining both old
and new forms of governance could be used in health care
legislation, despite important doctrinal differences between SGEI
and SGE (health care) as construed by the ECJ.
Allison Christians
(Assistant Professor of Law, University of Wisconsin Law
School)
Networks, Norms and National Tax Policy
People often think of tax policy as
rightfully the product of open, democratic national debate, but
increasingly, global tax policy norms are being formulated within
largely inaccessible transnational networks of technocratic elites.
In particular, tax committees organized within the Organization for
Economic Cooperation and Development (OECD) seem to play a primary
role in shaping tax policy norms through global networking. Yet,
little research has been done to examine the process by which tax
policy develops in and through these networks, or to evaluate the
appropriateness of this process. This project seeks to analyze
these issues by creating a model of the network-based tax policy
decision making process. It compiles and analyzes the accounts of
individuals who play various parts, such as consultant, researcher,
drafter, negotiator, etc., on specific tax policy projects
undertaken by the OECD. The aim of the project is to illuminate the
evolving role of global actors in defining issues for national
decision-makers, framing legal norms to respond to these identified
issues and, ultimately, shaping the focus and content of national
law.
Amy J. Cohen
(Assistant Professor of Law, Ohio State University Moritz College
of Law)
Governance Legalism: Hayek and Sabel on Reason
and Rules, Organization and Law
This paper explores how new governance
envisions the role of law in promoting both individual freedom and
social connection. As a set of projects to facilitate local
problem-solving communities, new governance shares a great deal
with other intellectual and social approaches that diverge from
civil-rights era liberal legal ideologies and that theorize
individual and social emancipation beyond the confines of the law.
Some of these divergent approaches see law as necessary, but cast
law in a negative light. For example, proponents of neoliberal
legalism seek to limit law to facilitating markets and security in
order to safeguard individual freedom and to encourage creativity,
risk, innovation, as well as extralegal forms of morality and
community. Left proponents of the ADR movement advocate "moving
beyond the law" in order to enable individuals to experience
dispute resolution as a form of personal empowerment and community
regeneration. Anarchist scholars, who aim in part to theorize as if
state law does not exist, have long promoted local consensual
deliberative processes as a means of transcending both individual
alienation and social hierarchy. (Some, in fact, saw the EU's
adoption of the principle of subsidiarity as an affirmation of
their ideas.) Other strands of thought that share aspirations in
common with new governance projects reposition law in a more
emancipatory light. For example, some contemporary legal
scholarship on civic republicanism and deliberative democracy
revive law as an affirmative means to facilitate participatory,
dialogic processes constitutive of self-fulfillment and a robust
social life. My paper studies new governance's relationship to, and
understandings of, law by exploring how they differ from and are
similar to some of these other approaches.
Mark Dawson
(University Lecturer in European Law, Maastricht University)
Transforming into what? New Governance in the EU and the
'Managerial Sensibility'
As part of his account of 'fragmentation' in international
law, Martii Koskenniemi has described the advance of a 'managerial
sensibility' in modern law. This sensibility incorporates two
claims - first of all, the increasing differentiation of
international rules; and secondly, a tendency to see law not as an
end in itself, but as a managerial technique; a means of reaching
the state of perfect equilibrium that experts within each
law-making 'box' hope to build. While Koskenniemi's metaphor is
intended for the international sphere, it is not difficult to apply
both tenets of managerialism to the practice of 'new governance'.
On the one hand, methods like the OMC attest to a feeling that law
is too general and distanced a register to capture the kinds of
detailed intervention that complex regulation requires, leaving a
need for procedural differentiation between different policy
fields. On the other hand, this differentiation has been
carried-out in order to 'specialise', or to allow the setting of
overall goals and targets, to be reached through the benevolent
guiding hand of functional and administrative elites. Managerialism
is present in processes like the OMC both as a differentiation of
legal procedures, and as a view of rules as 'flexible' in service
of the evolving goals and self-image of a particular policy
community.
While this managerial ethos would seem suitable for a
particular vision of the EU polity - a de-politicised regulatory
state - it is also, as this paper will argue, highly problematic.
As the principle vehicle for the delivery of the Lisbon strategy,
determining the indicators and objectives of the OMC is a far from
technical task, but involves important political trade-offs. The
method sits at the cornerstone of a vital political debate -
between those who wish to place a parameter of legal safeguards
around the national welfare state, and contrary voices calling for
welfare reform in Europe to be guided economic competitiveness.
What appears, and has been marketed as, a 'micro-politics' of
expert based indicators and benchmarking, has the potential to
simultaneously invoke larger strategic questions for the EU (and
its Member States) and place them out of public view.
As this paper will argue, this managerial ethos has a
bearing on how one should envisage both reforming the method, and
considering its relationship to law. The legal challenge is neither
- in the words of Jonathan Zeitlin - 'to apply the logic of new
governance to itself' - nor to juridify OMC procedures through
their incorporation within a rigid framework of legal
accountability. Rather the paper will argue for a search for
avenues for politicizing new governance, or for opening its
principle procedures and indicators up to critical evaluation and
scrutiny (including to a non-expert public).
While this is no easy task, the paper will conclude with
two modest proposals for politicization. It will firstly explore
the scrutiny role of the European Parliament (an institution that
seems increasingly distrustful of 'soft law' in a broader sense).
Secondly, the paper will discuss the development of the European
Ombudsman as an avenue to provide non judicial means for addressing
problems of intransparency and accountability in new governance. In
both cases, while a full politicization of the method may be
difficult, a partial strategy may be an important first step in
reconciling new governance procedures with the democratic values
upon which the Treaties of the EU claim to be based. Such a project
of political reform may yet allow the 'transformations' being
brought by methods like the OMC to be seen in a benevolent light
Grainne de Burca
(Professor of Law, Fordham University School of
Law)
New Governance in Europe and the US: Separated
Twins or Distant Cousins?
In this paper I intend to revisit a
question which I have touched upon in previous writing but have not
explored in depth. The question is what exactly the emergence of
‘new governance' as a paradigm for policymaking in the EU over
the last decade has in common with the rise of interest in
democratic experimentalism and related ideas of collaborative
governance in the US in recent times. Related questions were raised
in the exchange some years ago between Orly Lobel and Brad
Karkkainen about whether there is a coherent new governance
‘family' or movement, or whether some judicious splitting
(conceptual and otherwise) of the various candidate members is
required. The focus of my paper however will be on a slightly
different dimension of the query, which emphasizes the
transatlantic comparison in particular. In other words, the issue I
want to explore is what exactly the kind of transnational new
governance which is so strongly exemplified by EU developments has
in common with the ‘domestic' democratic experimentalism
appearing in the US. Much of the scholarship has assumed, given the
striking similarities between many of the features of what is
described as new governance in Europe and what is described as
democratic experimentalism in the US, that these are common species
of a genus or closely related parallel developments. On the other
hand, there are also fairly stark points of contrast, most notably
a strong top-down element and a self-conscious promotion and
development of new governance in the EU, as compared with the often
bottom-up and more haphazard evolution of experimentalist
governance practices in the US.
My hope is that a closer exploration of the similarities
and differences of the parallel developments on either side of the
Atlantic may help to shed light on some of the persistent questions
and concerns arising in relation to new governance and democratic
experimentalism. These include (1) whether there is an explicit
politics of new governance (2) what is the relationship, if any,
between new governance, democratic experimentalism and new
managerialist practices (3) what is the role of the ‘center' in
new governance and experimentalist schemes.
Cristie Ford
Assistant Professor and Co-Director, National Centre for Business
Law, University of British Columbia Faculty of Law)
New Governance in the
Teeth of Human Frailty: Lessons from Financial Regulation
The current financial crisis presents a
challenge to the new governance-style regulatory approaches that
have gained traction in recent years. At a minimum, the crisis
demonstrates the distance between an idealized new governance model
and the (superficially similar) decentralized, risk-based, and
outcome-oriented model of global financial market regulation. Key
features must have been missing; e.g., banks’ and insurers’
proprietary risk models were flawed, regulators were
under-resourced and insufficiently skeptical, credit rating
agencies were not objective, and no one was accounting for how
deeply and pervasively interdependent financial markets had become.
This paper argues that, far from being “mere” problems of
implementation, the financial crisis is a narrative about the
challenge of applying theory to an imperfect and unpredictable
world. The paper will consider some subtler effects of
self-interested behavior and bounded rationality, as well as an
apparent failure of contestation, disagreement, and diversity among
those involved in creating the debacle. It will try to assess
whether the global financial crisis is the spectacular exception
that proves the rule that new governance works, or whether it is
the real life experience that fatally undermines the promise of
theory.
Tamara Hervey
(Professor and Convenor of the Centre for the Study of Law in
Society, The University of Sheffield School of Law)
'Adjudicating in the
Shadow of the Informal Settlement?': The European Court of Justice,
'New Governance' and Social Welfare.
One of the 'promises' of new governance in the European
context is that new governance offers a solution to the 'problem'
of social Europe: the constitutional embedding of 'economic' values
in the EU's 'genetic legal code', without a counter-balancing
embedding of 'social' values. At the same time, however, the
European Court of Justice is increasingly asked to resolve disputes
involving clashes between the 'economic' freedoms of the single
market and social values such as wage levels, health care
provision, and educational entitlements. This paper considers the
relationships between new governance processes in social fields
such as poverty/welfare, health care, and education; and the
jurisprudence of the European Court of Justice. The work of US
scholars such as Erlanger and Edelmann suggests that courts can be
open to exogenous 'non-legal' rationales for problem-solving in
social fields, and that the phenomenon of litigation 'in the shadow
of the bargain' is a feature of dispute settlement in social fields
such as employment law. I hope the paper will draw on data from
informal interviews with Judges, Advocates General or
reférendaires (legal secretaries) at the European Court of
Justice.
Nan D. Hunter
(Professor of Law, Georgetown University Law Center)
Health Care, Citizenship, and the Potential of
New Governance
This paper will analyze the impact of
new knowledge production, in the form of demographic data, on
concepts of citizenship and rights in the field of health care.
Much has been written about regulation by information disclosure. I
want to explore questions not only of how data-driven regulation
might occur, but also how public knowledge of the data could affect
the framework we bring to understanding the relationship between
individuals and the health care system.
Preliminarily, I will discuss the extent to which
citizenship theory could offer insights for health-related
governance. I have argued elsewhere that the health care system
suffers from a democracy deficit, reflected in the fact that
individuals subjectively identify as patients or consumers or both,
but not as citizens, in their relationships with the system. This
part of this paper will seek to articulate a theoretical framework
for understanding how a concept of citizenship could be infused
into the health care system.
One barrier to such an understanding is the absence of a
touchstone for equal citizenship. What does "equality" mean when it
is applied to health care? Traditional approaches to civil rights
have had little purchase. Anti-discrimination statutes - the
primary one being Title VI of the 1964 Civil Rights Act - have had
little effect since the end of formally segregated medical
facilities. Requirements linked to receipt of government funds have
been somewhat more successful in broadening access, but they are
often not framed or discussed in a language that references ideas
of equality, and so do not affect social understandings.
These conceptual questions bubble beneath the surface of
current fights over data collection. At the behest of large
insurers and providers, federal health agencies have resisted calls
for the collection of data on race, ethnicity and language
proficiency. Although there are legitimate implementation questions
that need to be resolved, the prospect of a changed federal policy
on this point creates the possibility for statistics that could
dramatically map access and many other issues. The paper will
analyze the potential of such data for transforming the social
meanings of equality and citizenship in health care.
Bradley C. Karkkainen
(Professor and Henry J. Fletcher Chair, University of Minnesota Law
School)
Law, Norms, and Governance of Transboundary Water
Resources: Developments in Europe and North America
This paper will compare some important
recent developments in the management of transboundary water
resources---including both freshwater and marine ecosystems---in
Europe and North America. The first part of the paper will consist
of paired case studies of governance of the Great Lakes/St.
Lawrence River basin and one or more major transboundary European
river basins (to be determined) under the European Union's Water
Framework Directive; and a second pair of case studies of efforts
at marine ecosystem management in the Chesapeake Bay and in the
Baltic Sea under the Helsinki Convention, the European Union's new
Strategy for the Baltic Sea Region, and the proposed EU Marine
Strategy Framework Directive for which the Baltic Sea program
serves as a template.
Efforts at both freshwater and marine transboundary
ecosystem management got underway somewhat earlier in North
America, and many key concepts, scientific insights, and management
tools emerged there. This paper will argue, however, that the
North American efforts have underperformed due to inattention to
the governance arrangements that are necessary to carry out the
complex task of transboundary ecosystem management. The European
efforts, by contrast, are far more attentive to questions of
governance, and appear to be poised to surpass their North American
counterparts in successfully managing marine and freshwater aquatic
resources.
One key feature that might account for these differences is
the presence in the European context of framework laws like the
Water Framework Directive, the Helsinki Convention (on the Baltic),
and the new Marine Strategy Framework Directive. These laws aim
expressly to create governance institutions, accountability
mechanisms, and general substantive goals and objectives without
being overly prescriptive as to the details of process, substantive
requirements, or implementation mechanisms. The framework laws
thus both facilitate governance and create a broad zone of
discretion within which experimental policies and management
approaches may be developed, tested, and evaluated. In addition,
both the Water Framework Directive and the new Marine Strategy
Framework Directive aim explicitly to create multiple parallel
experiments, coupled with reporting requirements and assessment
mechanisms that encourage the horizontal diffusion of learning. In
that sense, the Framework Directives may represent a significant
advance over an earlier general of single-basin framework
agreements like the Helsinki Convention that assumed
experimentation and learning would take place within in a
geospatially discrete unit. The paper concludes that comparatively
"hard" framework laws can play a useful role in advancing "soft"
approaches to governance.
Poul F. Kjaer
(Research Fellow, Cluster of Excellence “The Formation of
Normative Orders” Goethe University, Frankfurt am Main)
The Metamorphosis of
the Functional Synthesis: A Continental European Perspective on
Governance, Law and the Political in the Transnational
Space
The legitimacy of nation-states emerges from the specific
way in which the political and the legal systems orient themselves
towards each other. This mutual orientation can also be described
as a form of "functional synthesis". In the existing literature it
is commonly argued that the functional synthesis is a lot weaker,
if it exists at all, at the trans-national level. Trans-national
legal regimes often rely on "judge-made law" to a far higher extent
than is the case within nation-state structures, since it often is
developed without or only with very weak references to formal
legislation produced within the political system. In addition,
trans-national political-administrative structures often expand
their operations without relying on a formal legal basis. Law is to
a high extent only activated ex-post in order to formalise already
existing structures. In their internal organisation, trans-national
political-administrative structures are, moreover, characterised by
an absence of democracy.
The argument which will be pursued in this paper is however
that the functional synthesis does exist at the trans-national
level but that it is taking a different form than at the
nation-state level. At the trans-national level it is possible to
observe the emergence of a number of functional equivalents to
different aspects of the political, e.g. in the form of a concept
of stakeholders which serve as a "stand-in" for the concept of the
people, a concept of transparency which has emerged as a
"re-placement" of the concept of the public sphere. Thus, the
political only remain un-observable at the trans-national level if
it is observed on the basis of an "un-reflective" transmission of
concepts developed in the nation-state context to the
trans-national level. Instead it is argued that it is necessary to
develop a new concept of the political, freed from existing
nation-state connotations, which is suitable for describing the
operations of political structures at the trans-national level.
Through a number of empirical examples from the area of
trans-national governance it will moreover be illustrated that
trans-national legal practice indeed orient themselves towards such
new forms of the political and that the law in reality cannot
operate without a systematic incorporation of political components.
Edward L. Rubin
(University Professor of Law and Political Science, Vanderbilt
University Law School)
The Regulatizing
Process and the Boundaries of New Public Governance
This paper will explore the social and political conditions
that are required to make new governance possible and effective.
The underlying premise is that command and control regulation is
the natural approach for governments to adopt in situations where
they need to establish their authority, and more specifically their
regulatory jurisdiction over a given area. When governmental
authority is challenged, and more generally when there is an
adversarial relationship between government and the regulated
parties, government officials will turn toward "orders backed by
sanctions" as a means of achieving their goals. This does not mean
that there will be no negotiations or other informal interactions
between these officials and the regulated parties, but only that
the formal interactions will tend toward a command and control
model.
The more cooperative and responsive approach of new
regulation can flourish when civil order is well-established and
regulated parties do not see themselves as committed adversaries of
the central government. But this is not sufficient; what is also
required is the internalization of norms that provide a background
understanding of both general goals and acceptable behaviors.
Drawing on Norbert Elias' theory of norm internalization (The
History of Manners and The Civilizing Process) the paper will trace
mechanisms by which this internalization process occurs. Elias
focused on the interaction between society and the individual in
his work, and spoke about internalization as a human process.
Because regulation often involves the relationship between
government and organizations, this paper will look at
internalization from an institutional perspective. It will use
insights from new institutional sociology (Powell and DiMaggio) to
trace the way that corporate decision making, staffing patterns,
hiring, legal advice, consumer preferences and other factors
generate a process by which an institution can be said to
internalize a given norm. Examples of the process will be draw from
several regulatory areas, including occupational health, automobile
safety and financial services.
Having explored the relationship between new governance and
norm internalization, the paper will then proceed to consider the
effectiveness and fairness of the process that has been described.
This aspect of the discussion will contextualize the process in the
experience of modernity (Weber, Habermas, Giddens). In all stable
societies, both individuals and institutions internalize prevailing
norms, and the historical aspect of Elias' study can be interpreted
as an account of the growth and stabilization of Western society
from its inchoate origins in the European Dark Ages. Modernity is
distinctive, it will be argued, in that the norms being
internalized are second order ones involving procedural issues and
ultimate social goals, rather than the operational-level norms that
prevailed in pre-modern society. This introduces elements of
flexibility, mutuality and self-consciousness into an
internalization process that can otherwise be rigid and stultifying
--and thus unfair and ultimately counter-productive -- despite its
obvious short and medium term utility. The complexity of
modernity's second order norms also suggests that they will produce
larger variations within a given society than operational norms.
Recognition of this variability provide a way to compare the scope,
effectiveness and fairness of new governance in different Western
nations, and incorporate some of the contemporary research on
comparative regulatory practices (Kagan, Vogel, Kelman, Lipset)
Joanne Scott
(Professor of European Law and Co-Director, Centre for Law and
Governance in Europe, University College London) and
William H. Simon
(Arthur Levitt Professor of Law, Columbia University School of
Law)
The Challenge of Regulating Carbon Offsets (in
the European Union)
Market simulation regimes are often
perceived and presented as alternatives to command and control
regulation, and may be viewed as a competitor to new governance
accounts of regulation. We want to consider whether these two very
different approaches really do constitute alternatives, or whether
they may be combined in fruitful ways. Our paper will explore
emissions trading regimes in carbon markets from the perspective of
new governance. It will consider to what extent market simulation
regimes of this kind are compatible with new governance, and how
they should be designed in order that they can be. The paper will
look at the EU's emissions trading regime, now in its third cycle,
at regional initiatives in the U.S. such as the North Eastern and
Southern Californian programmes, and at proposals before Congress
to establish a carbon trading regime in the United States. There is
also a high level of awareness of the need to integrate the
emissions markets on the two sides of the Atlantic and this will
also form an element of our paper.
Jason M. Solomon
(Assistant Professor, University of Georgia School of Law)
New Governance:
Blurring Boundaries in Regulatory Theory and Practice
According to the last Democratic President in the U.S.,
Bill Clinton, "the era of big government is over." For policymakers
and scholars of regulatory theory, the question has been what is
taking its place. As the next Democratic president takes office,
though, "big government" looks a lot better than it did a decade
ago. Put differently, the strategy of relying on the private sector
to self-regulate appears to have been a serious failure in the
financial industry, raising questions about the wisdom of such an
approach more broadly.
In that context, this paper explores the question of the
appropriate balance between the public and private sectors in
regulation by considering a particular phenomenon: preemptive
self-regulation. I use the term "preemptive self-regulation" to
refer to companies and industries reacting to concern from the
public and policymakers, expressed either through potential
lawsuits or the threat of increased regulation, by announcing that
they will do the job of regulation themselves. The aim is to take
the wind out of the sails of the regulators, and the thrust of much
recent regulatory scholarship is that this kind of increased
reliance on the private sector is a good thing. Indeed, this is a
major premise of "new governance" scholarship.
The paper proceeds by considering three recent case studies
in the U.S. of preemptive self-regulation. The case studies deal
with (1) the sales and marketing of food and drink to children: (2)
data privacy and security; and (3) the regulation of speech abroad
by Internet service providers. In considering these case studies,
the paper begins with the descriptive, exploring the form of
self-regulation undertaken by the relevant industries, the
alternatives that had been put forth by policymakers, and how the
"new governance" criteria fare under the various approaches. Then,
turning to the normative, the paper looks at how policymakers could
have strengthened desirable features of new governance like
transparency, benchmarking and monitoring, while still enlisting
the industries themselves to do much of the work. The paper
concludes by offering guidance to policymakers facing these
scenarios going forward, as well as offering observations for the
regulatory-theory literature. Where much of the new-governance
literature approaches the question as one of optimal institutional
design, this paper adopts more of' a posture of institutional
adaptation, looking at how regulatory dilemmas arise and
considering how new-governance features can emerge from private
ordering.
Preemptive self-regulation presents a recurring scenario
for policymakers, and an opportunity for new-governance scholars.
If new-governance scholars have a theory about how to treat
companies or industries that attempt preemptive self-regulation in
order to promote the desiderata of transparency, benchmarking, and
deliberation associated with new-governance approaches, then
policymakers may be able to scale up "new governance" approaches in
the US in a way that has not been possible thus far. This paper
aims to contribute to that project.
Stephanie Tai
(Assistant Professor of Law, University of Wisconsin Law
School)
Comparing Approaches
Towards Governing Scientific Advisory Bodies on Food Safety in the
United States and the European Union
Governmental bodies must often rely upon scientific
research in deciding when and how to structure regulatory programs
in areas of emerging health and environmental risks. Because the
science is in development in these areas, such research can be both
uncertain and controversial. Thus governmental bodies often draw
from a number of different research sources, including
nongovernmental scientific advisory bodies, as well as regulatory
research institutions and educational research institutions.
This paper will provide a preliminary comparison of the
ways in which nongovernmental advisory bodies provide information
to regulatory institutions in the United States and the European
Union. In particular, this paper will examine the processes by
which the United States' National Academy of Sciences and the
European Academies' Science Advisory Council has provided advice to
government institutions in areas of environmental and health risks.
In doing so, I hope to provide a starting point for examining the
effectiveness and appropriateness of similar scientific advisory
structures in developing countries in Asia.
Michael Wilkinson
(Lecturer in Law , London School of Economics Department of
Law)
Three Conceptions of Law: Towards a
Jurisprudence of Democratic Experimentalism
Modern legal theory tends to be
dominated by two paradigms that reflect competing views of the
nature of law and the institution of legality: call them the
'sociological conception' and the 'moralistic conception'. Both,
however, in their different ways prop up an image of the law as
irredeemably connected to the modern State. The purpose of the
paper is to contrast these to a third paradigm, the 'democratic
conception', which is meant as a theoretical support to the
transformation of law signalled by the emergence of new
governance/experimental democracy.
First, the sociological conception understands law as means
to an end, an instrument of social control. This view is dominant
in the philosophy of classical legal positivism. Ideologically, it
emerges with the modernist unmasking of law as artefact and
artifice, a tool that may be put by the State to benign or
malignant use, or allied to a substantive philosophy of social
amelioration, e.g. that of utilitarianism or the Sozialstaat. The
rationality of legality is instrumental, valued by its ability to
facilitate stability, social order and to promote efficiency in
achieving social goals.
On the other hand, the moralistic conception understands
the law and the institution of legality as constituting a necessary
good or an end in itself. This reflects the natural law view of law
embodying a higher value-rationality or basic human good. It finds
its modern expression in the proceduralist ideal of the rule of
law. It tends to look at law as a check upon the centralised power
of the State, as evident in the German Rechtsstaat and French Etat
de Droit. The idea that law cannot be divorced from a legality that
embodies inherently moral ideals continues to influence the writing
of contemporary jurisprudence in diverse ways.
These two conceptions need not be viewed as unitary
traditions, nor are they meant to be exhaustive. They are presented
here as ideal types or stylised models. Although ideologically
opposed to one another, both are wedded to the modern State form.
In both cases law is presented as in some sense 'beyond the reach'
of the individual or the collectivity. Law is reified,
disempowering and top-down. The central case of law is as an
official not a collective practice. Even if it is meant to protect
the rights or promote the interests of individuals (or
communities), legal authority is deeply heteronymous. Whether in
the guise of legal-rational authority in the modern bureaucratic
regime that enjoys the monopoly of legitimate force, or in the
presentation of law as a moral justification of coercion for the
defence of individual rights, the significance of State power is
central if often implicit.
Recently attention has turned to the proliferation of
diverse decentralised forms of 'new governance'/'democratic
experimentalism' and e.g. the phenomena of soft law,
self-regulation, non-state actors. Within the trend can be included
not only the fragmentation of international law and the emerging
forms of supranationalism, particularly in the EU, but also the
increasingly localised self-governance and informal regulatory
autonomy. Many features of this 'new governance' have been
discerned and can be contrasted with the features of the
paradigmatic models examined above: e.g. reflexive rather than
coercive, problem-solving rather than command and control,
bottom-up coordination rather than top down imposition, polyarchy
rather than hierarchy, flexibility over rigidity, informal over
formal arenas. This has led some to question whether these new
developments can be covered within the existing legal paradigms,
whether they co-exist outside established forms, overlap in
interdependence with them, or whether, more radically they signal
the transformation of our conception of law.
Assuming them to be an accurate reflection of present
circumstances and future trajectories, these new developments call
into question the received wisdom of much modern social and legal
theory and suggest that the link between the law and state may be
reconceived as deeply contingent if not broken altogether. This
transformation should be grasped as calling forth a deeply
empowering possibility, with the re-emergence of law as a central
aspect of our political autonomy and institutional imagination. By
re-excavating the traditions we can find a third neglected
paradigm, the 'democratic conception' which views law not merely as
a centralised means of social control, nor as a check against
centralised State action but as part and parcel of the expression
of our collective autonomy and constitutive of a multiplicity of
public realms. This democratic conception of law must be seized by
those wishing to pursue the agenda of new governance/democratic
experimentalism, which if left to the margins otherwise poses risks
to the standard models of political accountability.
Katharine G. Young
(Research Fellow, Center for International
Governance and Justice at the Regulatory Institutions Network
(RegNet), Australian National University)
Courts as Catalysts for Economic and
Social Rights: South African Revisions on a New Governance
Theme
The right to health is a popular discursive strategy for
claimants and social movements advocating for medicines, health
care or environmental protections. More than just a galvanizer, the
right to health may in fact configure actual legal-institutional
outcomes. Drawing upon case studies from South Africa, Ghana and
India, I suggest the right to health is made meaningful when three
key dynamics are understood. First, health rights claimants can
engage a series of strategies that defy the standard separation
between adjudication and political forms of action. Second, courts
are competent to apply a rights-balancing method of review of
health interests, and to design remedies which can work
collaboratively with public agencies, hospitals, clinics and other
stakeholders. Third, (and critical to the success of the other
two), the dynamic of public action that is set in motion by rights
language can generate a particular form of social movement which
discredits the privatized experience of health need. My examples
include a campaign against government policy on AIDS medicine in
South Africa, a movement against user fee health policy in Ghana,
and litigation against patent rights in India.
--end of list--