Fall 2009 Seminar

Selected Problems in Jurisprudence:
New Governance and the Transformation of Law

3 Credits
Instructor: David M. Trubek

This seminar will explore the rise of new forms of governance and their implications for the future of law and legal practice. Governments and international agencies around the world have begun to use new tools and processes to achieve public policies. Generically labeled “new governance”, these may involve the use of broad standards instead of fixed rules; rely on networks of policy makers, experts, stakeholders, NGOs and the public for decision-making; encourage experimentation and reviseability; employ measurement and monitoring in place of mandates and sanctions; and privilege self-regulation.  Ideally, this will create a form of networked governance that would be reflexive rather than coercive, problem-solving rather than controlling, coordinating rather than mandatory, bottom-up rather than top-down. Some scholars decry these developments, considering them a threat to the rule of law, while others see them as the beginning of a fundamental transformation of the legal order and one that requires rethinking some basic ideas about law. To explore these issues, the seminar will look at the new governance phenomenon in the context of 20th Century legal theory and current discussions of the changing role of government. It will lead up to a Transatlantic Conference on “New Governance and the Transformation of Law” to be held on November 20-21 as the annual Symposium of the Wisconsin Law Review. This event will bring together leading scholars from the US, Canada, and Europe to debate these developments.

More information is available here:  Conference homepage

Students in the seminar will write 20 page papers on topics related to theme and are expected to attend conference sessions relevant to their paper. Papers are due at the end of the semester and would meet the upper level writing requirement.

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