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.
(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.
(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.
(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.
(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.
(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.
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.
(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
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)
Regulatizing Process and the Boundaries of New Public
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)
(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.
(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.
(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.
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