Institutions and Regulatory Reforms for the Age of Governance
The CRC Series on Competition, Regulation and Development
Edited by Jacint Jordana and David Levi-Faur
Chapter 12: Law in the Age of Governance: Regulation, Networks and Lawyers
Patrick Schmidt* The ‘Age of Governance’ has meant challenges to the centrality of state power, decreased relevance of formal models of administrative hierarchy, and recognition of interdependence among private and public actors (Haas, 1992; Marks et al., 1996; Strange, 1996; Pierre and Peters, 2000; Black, 2001a; Scott, 2001, Chapter 7 in this volume). At the same time, commentators have expressed a heightened concern for the expansion of US-style, adversarial legalism, which has been taken to mean heightened formality, rule-based relations and judicial management of regulatory interactions (Kagan, 2001; Keleman, 2002). The apparent paradox in the simultaneous decline of statecentred control and the rise of an ‘age of legalism’ dissolves on closer inspection: whereas it once might have been presumed that the state holds all the legal instruments of regulatory control, we now recognize that private sector regulated entities have numerous legal options available, and with those options firms have the ability to engage regulators at the bargaining table. The interdependence, continuing relationships and strategic interactions of public–private regulatory encounters are all consistent with a situation in which the legal setting of administrative regulation gives bargaining chips to both public and private actors. These two phenomena – more generally, the politics of public–private regulatory interaction and the legal realm in which regulatory policy-making finds its effect – are difficult to bring into a single conversation. Certainly, a notion of law, usually meaning the ‘hard law’ of formal decrees and binding rules, has always been the background for the traditional accounts of...
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