Law and Governance in the 21st Century Regulatory State

Abstract:     
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, edited by Gráinne de Búrca and Joanne Scott, is a collection of works by some of the leading scholars in the "new governance" field. The second, The Regulatory and Administrative State: Materials, Cases, Comments, by Lisa Heinzerling and Mark Tushnet, is one of the first casebooks for a class on the regulatory state, as well as the first book from Oxford University Press's new Twenty-First Century Legal Education series.

In this review essay, 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 that they share a common flaw: a lack of attention to the "adversarial legalism" that pervades American policymaking and implementation, and the role of lawyers. This inadequacy threatens both the power of new governance as an overarching regulatory theory and the pedagogical potential of promising curricular reforms. I suggest future directions for new governance scholarship, and for courses on lawyering in the regulatory state.

Keywords: Regulatory state, Legal pedagogy

JEL Classifications: K23

Accepted Paper Series