Chapter 7: Public law and regulatory theory
Increased involvement, delegation, and deference to non-state actors is probably the most important change to the regulatory state in the past three decades. This chapter explains the rise of governance in the context of public law as a shift from rulemaking by governmental institutions to rulemaking coming from private organizations and other civil actors. I highlight this evolution along three dimensions: prelude to governance, from government to governance, and beyond governance. I conclude by arguing that, while law remains necessarily a public function, the private role in the construction and meaning of regulation, compliance and law itself is more salient and celebrated than ever before.
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