In a speech to the State Bar of Wisconsin, the head of the state Department of Natural Resources, Scott Hassett, acknowledged the contribution of the WAGE Governance Project and faculty from the UW Law School and the La Follette Institute towards better environmental regulation in Wisconsin.
In his 15th Annual Environmental Law Update, delivered October 21, 2003, Hassett said, "Legal scholars around the world are discussing Phase Two environmental law and even here in Wisconsin, which can be a leader, if we choose. Earlier this month, the Center for World Affairs and Global Economy at UW-Madison sponsored a workshop on "Regulation, Governance and Law in the 21st Century: Towards a New Legal Process?" David and Louise Trubek of the UW Law School performed a great service by calling this conference and asked several questions. Among them are:
"Has a governance approach emerged that replaces classic ideas of regulation?
"Does such a governance paradigm pose serious challenges for legal theory and require changes in lawyerspractices?
"Can we see similar developments in other countries?
"Must we rethink the distinction between rules and standards?
"With their global experience and scholarship, the Trubeks tipped their hand by selecting the presenters who said that new legal processes are, in fact, emerging.
"From the University of Columbia Law School, William Simon observed that legal liberalism that is often managed centrally by experts is yielding to a diffused and collaborative legal pragmatism. It is a shift, he said, from individualistic and categorical rights to common problem solving. Environmentally, that might be characterized by legal arguments that shift from a focus on parts per billion to ecosystem management.
"From Harvard's JFK School, Orly Lobel said that new governance models of social conduct are replacing historic regulatory governing. She had examples affecting employment, social services, health, education, policing, intellectual property, corporate shareholder protection and environmental protection. One of her contrasts was between what she called coercive law affecting discrete actions and aspirational law that produces holistic actions.
"These snapshots are not to suggest the old way should be discarded or that new ways are perfect or even better. They do suggest that we must open our eyes to change and open our minds to changing. Wisconsin's competitive climate and environmental needs make these discussions real, not academic."
Submitted by on November 5, 2003
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