Law and Governance in the 21st Century Regulatory State

Law and Governance in the 21st Century Regulatory State LAW AND NEW GOVERNANCE IN THE EU AND THE US. Grainne DE Burca[dagger] & Joanne Scott,[dagger][dagger] eds. Portland, OR: Hart Publishing, 2006. Pp.440. $70.00. THE REGULATORY AND ADMINISTRATIVE STATE: MATERIALS, CASES, COMMENTS. By Lisa Heinzerling[double dagger] & Mark V. Tushnet.[double dagger][double dagger] New York, NY: Oxford University Press, 2006. Pp. 872. $99.00. I. Introduction In 1996, a Democratic president, Bill Clinton, famously declared: "The era of big [government is over."1 The question for U.S. policymakers and legal scholars ever since has been: what is taking-indeed, what should take-the place of the "command-and-control" post-New Deal regulatory state? Legal scholarship and pedagogy on the regulatory state are at parallel, important junctures, and two new books stand at the cutting edge. The first, Law and New Governance in the EU and the US,2 edited by Grainne de Burea and Joanne Scott, is a collection of works by some of the leading scholars in the "new governance" field. New governance scholars have both described and laid the theoretical foundation for what they see as promising and innovative efforts to address public problems.3 These efforts attempt to be less hierarchical, more transparent, and more democratic than traditional top-down forms of regulation. The second, The Regulatory and Administrative State: Materials, cases, Comments,4 by Lisa Heinzerling and Mark Tushnet, is one of the first casebooks for a class on the regulatory state and may have helped persuade Harvard's faculty that adding such a class to the first-year curriculum was feasible as part of their recent curricular reform.5 Moreover, as the first in Oxford University Press's Twenty-First Century Legal Education series,6 an unusual foray by the elite academic publisher into books for American legal education, the book will no doubt be influential at many elite law schools. Besides Harvard, Stanford is also undertaking significant curricular reform, though focusing more on the second and third years,7 and Dean Edward Rubin of Vanderbilt is leading an ambitious effort at that school.8 In this Review, I aim to link these two books and the developments in the legal academy for which they stand: the scholarly effort to rethink the role of the state in the twenty-first century and the curricular effort to make courses on the regulatory state a core part of legal education. I think both books are tremendously important and largely succeed on their own terms. But I argue in this Review that they share a common flaw: a lack of attention to the "adversarial legalism" that pervades American policymaking and implementation.9 Part II of this Review describes the emerging new governance literature, as captured in Law and New Governance, and suggests future directions for new governance scholarship. Part III looks at and assesses the pedagogical approach taken in The Regulatory and Administrative State, locating it in the context of recent curricular reforms. Part IV critiques both books on a common ground-a lack of attention to adversarial legalism and the role of lawyers-and argues that this inadequacy threatens both the explanatory power of new governance as an overarching regulatory theory and the pedagogical potential of promising curricular reforms. I argue that a more nuanced account of how new governance schemes both arise and play out "on the ground" in the culture of adversarial legalism will help strengthen the theory's explanatory power. Part V concludes by arguing that both the scholarly and pedagogical developments described here could benefit from greater attention to the other. II. Law and New Governance Under a traditional, command-and-control regulatory model-embodied in the post-New Deal administrative state in the United States and the harmonization efforts of the European Union-the state sets rules or standards through the legislature or agencies delegated power by the legislature, and private actors must comply with those rules. …