New Governance & Legal Regulation: Complementarity, Rivalry, and Transformation

27 Pages Posted: 24 May 2007

See all articles by David M. Trubek

David M. Trubek

University of Wisconsin Law School

Louise G. Trubek

University of Wisconsin Law School

Abstract

New approaches to regulation have emerged to deal with inadequacies of traditional command and control systems. Such "new governance" mechanisms are designed to increase flexibility, improve participation, foster experimentation and deliberation, and accommodate regulation by multiple levels of government. In many cases, these mechanisms co-exist with conventional forms of regulation. As new forms of governance emerge in arenas regulated by conventional legal processes, a wide range of configurations is possible. The purpose of this Article is to provide a preliminary mapping of such relationships, using examples drawn from the European Union and the United States. When traditional law and new governance are yoked together in a hybrid form, we might speak of a real transformation in the law. In other cases, systems of law and new governance may exist in parallel but not fuse together. Where both systems co-exist but do not fuse, there are numerous possible configurations and relationships among them. One might launch the other, as when formal law is used to mandate a new governance approach. Or, they might operate independently yet both may have an effect on the same policy domain. Finally, in some areas one system may take over the field, either because new governance methods replace traditional law altogether, or because opposition to innovation halts efforts to employ new approaches.

Keywords: regulation, governance

JEL Classification: K40, K32, K20

Suggested Citation

Trubek, David M. and Trubek, Louise G., New Governance & Legal Regulation: Complementarity, Rivalry, and Transformation. Columbia Journal of European Law, Summer 2007; Univ. of Wisconsin Legal Studies Research Paper No. 1047. Available at SSRN: https://ssrn.com/abstract=988065

David M. Trubek (Contact Author)

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

Louise G. Trubek

University of Wisconsin Law School ( email )

975 Bascom Mall
Madison, WI 53706
United States

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