Wisconsin law review symposium afterword

Wisconsin Law Review

Volumn 2010, Issue 2, 2010, Pages 737-748

  Alexander, Lisa T ^a  

^a UNIVERSITY OF WISCONSIN LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 78650838471     PISSN: 0043650X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (63)

1. See, e.g., Bradley C. Karkkainen, Environmental Lawyering in the Age of Collaboration, 2002 Wis. L. REV. 555;
2. Orly Lobel, Lawyering Loyalties: Speech Rights and Duties Within Twenty-First-Century New Governance, 77 FORDHAM L. REV. 1245 (2009);
3. Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004);
4. William H. Simon, Solving Problems vs. Claiming Rights: The Pragmatist Challenge to Legal Liberalism, 46 WM. & MARY L. REV. 127 (2004);
5. Susan Sturm, The Architecture of Inclusion: Advancing Workplace Equity in Higher Education, 29 HARV. J.L. & GENDER 247 (2006)
6. [hereinafter Sturm, Architecture of Inclusion];
7. Susan Sturm, Lawyers and the Practice of Workplace Equity, 2002 Wis. L. REV. 277
8. [hereinafter Sturm, Workplace Equity];
9. Symposium, Lawyering for a New Democracy, 2002 Wis. L. REV. 271;
10. Louise G. Trubek, Public Interest Lawyers and New Governance: Advocating for Healthcare, 2002 Wis. L. REV. 575.
11. See Douglas NeJaime, When New Governance Fails, 70 OHIO. ST. L.J. 323, 348-49 (2009) (arguing that lawyers, and public interest lawyers in particular, are often peripheral to new governance practice and that new governance scholars must work toward articulating new, or at least reinvented, roles for lawyers).
12. See, e.g., Mark Dawson, Transforming Into What?: New Governance in the EU and the "Managerial Sensibility" in Modern Law, 2010 Wis. L. REV. 389;
13. Helen Hershkoff & Benedict Kingsbury, Crisis, Community, and Courts in Network Governance: A Response to Liebman and Sabel's Approach to Reform of Public Education, 28 N.Y.U. REV. L. & Soc CHANGE 319 (2003);
14. Charles F. Sabel & William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 HARV. L. REV. 1016 (2004);
15. Joanne Scott & Susan Sturm, Courts as Catalysts: ReThinking the Judicia Role in New Governance, 13 COLUM. J. EUR. L. 565 (2007);
16. Kenneth A. Armstrong & David M. Trubek, The Role of the European Court in Public Law Litigation: Destabilizing Social Sovereignty and Mandating Alternative Processes, Paper Presented at the University of Wisconsin Law Review Symposium: Transatlantic Conference on New Governance and the Transformation of Law (Nov. 20-21, 2009) (on file with author);
17. Tamara Hervey, "Adjudicating in the Shadow of the Informal Settlement?": The European Court of Justice, "New Governance" and Social Welfare, Paper Presented at the University of Wisconsin Law Review Symposium: Transatlantic Conference on New Governance and the Transformation of Law (Nov. 20-21, 2009) (on file with author);
18. Katharine G. Young, Courts as Catalysts for Economic and Social Rights: South African Revisions on a New Governance Theme, Paper Presented at the University of Wisconsin Law Review Symposium: Transatlantic Conference on New Governance and the Transformation of Law (Nov. 20-21, 2009) (on file with author).
19. See Gráinne de Burea & Joanne Scott, Introduction: New Governance, Law and Constitutionalism, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 1, 2 (Gráinne de Búrea & Joanne Scott eds., 2006) ("In a practical sense, the concept of new governance results from a sharing of experience by practitioners and scholars across a wide variety of policy domains which are quite diverse and disparate in institutional and political terms, and in terms of the concrete problem to be addressed. Yet in each case, the common features which have been identified involve a shift in emphasis away from command-and-control in favour of 'regulatory' approaches which are less rigid, less prescriptive, less committed to uniform outcomes, and less hierarchical in nature.").
20. See Sturm, Architecture of Inclusion, supra note 1, at 268 n.83 ("The language of 'new governance' scholars includes democratic experimentalism, empowered participatory governance, a structural approach, legal pragmatism, reflexive law, and an open method of coordination.").
21. "Weltanshauung" is a word from German philosophy that means "a comprehensive conception or apprehension of the world especially from a specific standpoint." MERRIAM-WEBSTER DICTIONARY, http://www.merriam- webster.com/dictionary/weltanschauung (last visited Feb. 1, 2010).
22. See Amy J. Cohen, Governance Legalism: Hayek and Sabel on Reason and Rules, Organization and Law, 2010 Wis. L. REV. 357, 387 ("The term 'bracket' could indicate that new governance architects are unwilling to advocate for particular social objectives, but they nonetheless believe that through the expansive frameworks of accountability they design, individuals will use reason to improve organizations and advance the ends of distributional equity.").
23. See, e.g., Armstrong & Trubek, supra note 3;
24. Allison Christians, Networks, Norms, and National Tax Policy, Paper Presented at the University of Wisconsin Law Review Symposium: Transatlantic Conference on New Governance and the Transformation of Law (Nov. 20-21, 2009) (on file with author);
25. Joanne Scott & William H. Simon, The Challenge of Regulating Carbon Offsets (in the European Union), Paper Presented at the University of Wisconsin Law Review Symposium: Transatlantic Conference on New Governance and the Transformation of Law (Nov. 20-21, 2009) (on file with author).
26. See also Kathleen G. Noonan, Charles F. Sabel & William H. Simon, Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform, 34 LAW & Soc INQUIRY 523, 524 (2009) (describing current new governance developments in child welfare as promising improved performance);
27. Sturm, Architecture of Inclusion, supra note 1, at 271-86 (explaining a successful new governance project in the area of workplace gender equity).
28. See, e.g., Wendy A. Bach, Governance, Accountability, and the New Poverty Agenda, 2010 Wis. L. REV. 239, 241-42;
29. Cristie Ford, New Governance in the Teeth of Human Frailty: Lessons from Financia Regulation, 2010 Wis. L. REV. 441, 443;
30. see also Lisa T. Alexander, Stakeholder Participation in New Governance: Lessons from Chicago's Public Housing Reform Experiment, 16 GEO. J. ON POVERTY L. & POL'Y 117, 174-76 (2009) (describing the participation of public housing residents in Chicago's public housing reform process which failed to empower residents and equitably distribute the benefits of reform).
31. See sources cited Supra note 9.
32. Gráinne de Búrea, New Governance and Experimentalism: An Introduction, 2010 Wis. L. REV. 227, 235.
33. See supra note 2 and accompanying text.
34. See Louise G. Trubek, New Governance and Son Law in Health Care Reform, 3 IND. HEALTH L. REV. 137, 149 (2006) (explaining that traditional "hard law" approaches have proved inadequate in many instances and that new governance approaches allow learning and feedback and create alliances).
35. See Charles F. Sabel & William H. Simon, Epilogue: Accountability Without Sovereignty, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 395-96 (Gráinne de Búrea & Joanne Scott eds., 2006) (defining the "transformation thesis" and explaining why they are drawn to it);
36. see also de Búrea & Scott, Supra note 4, at 9 ("The transformation thesis argues that new governance has demanded, and will increasingly demand, a re-conceptualisation of our understanding of law and of the role of lawyers.").
37. For example, as Professor Louise Trubek in her study of the role of public interest lawyers in recent health care advocacy efforts explains, "[t]he lawyer has moved from the role of adversary in the legislature, courts, and agencies to a collaborator engaged in a series of alliances to develop and implement policy." Trubek, supra note 1, at 586.
38. See also Sturm, Workplace Equity, supra note 1, at 332 (describing "the importance and the promise of lawyers as intermediaries, problem solvers, institutional designers, and information entrepreneurs").
39. See Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 YALE L.J. 239, 243 (1984) (arguing that if what a business lawyer does has value, "a transaction must be worth more, net of legal fees, as a result of a lawyer's participation").
40. See Jason M. Solomon, Law and Governance in the 21st Century Regulatory State, 86 TEX. L. REV. 819, 848 (2008)
41. (reviewing LAW AND NEW GOVERNANCE IN THE EU AND THE US (Gráinne de Búrea & Joanne Scott eds., 2006)) (describing new governance scholarship as having a "vision of collaboration and inclusive participation").
42. See, e.g., Bradley C. Karkkainen, Information-Forcing Regulation and Environmental Governance, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 293 (Gráinne de Búrea & Joanne Scott eds., 2006);
43. Sabel & Simon, supra note 3, at 1016;
44. Scott & Sturm, supra note 3, at 571.
45. See NeJaime, Supra note 2, at 329 (outlining professional and representational objections to new governance from a lawyering perspective);
46. see also Susan D. Carle, Progressive Lawyering in Politically Depressing Times: Can New Models for Institutional Self-Reform Achieve More Effective Structural Change?, 30 HARV. J.L. & GENDER 323, 337-38 (2007) (describing problems with the conception of lawyers in Susan Sturm's study of the University of Michigan's ADVANCE workplace gender equity reform project program).
47. I make this claim well aware of the limitations of rights themselves in promoting social justice and social change. Formal legal rights are not sacrosanct and I am aware of the significant work exploring the limitations of rights. See, e.g., Duncan Kennedy, The Critique of Rights in Critical Legal Studies, in LEFT LEGALISM/LEFT CRITIQUE 178 (Wendy Brown & Janet Halley eds., 2002). However, I submit that participatory rights, and in some cases substantive rights, may help to increase the accountability of new governance regimes particularly when there are substantial power inequities between participating stakeholders.
48. NeJaime, supra note 2, at 327.
49. See id. at 363 ("In this sense, successful rights-claiming litigation might, in some ways, be a necessary but not sufficient condition for successful New Governance practice.").
50. See de Búrea & Scott, supra note 4, at 6.
51. See id. at 6-9.
52. See id. at 7.
53. Id.
54. Id. at 8.
55. See id.
56. See id. at 9;
57. see also Karkkainen, supra note 18, at 304 (discussing the concept of the penalty default in environmental regulation).
58. See Alexander, supra note 9, at 185.
59. See id. at 123.
60. See David M. Trubek et al., "Son Law," "Hard Law," and EU Integration, in LAW AND NEW GOVERNANCE IN THE EU AND THE US 65 (Gráinne de Búrea & Joanne Scott eds., 2006) (defining "soft law" as non-binding directives).
61. See David Kairys, Introduction to THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 1, 1 (David Kairys ed., 1990) ("Law is depicted as separate from-and 'above'-politics, economics, culture, and the values and preferences of judges.").
62. See Duncan Kennedy, Legal Education as Training for Hierarchy, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 38,45 (David Kairys ed., 1990) ("The bias arises because law school teaching makes the choice of hierarchy and domination, which is implicit in the adoption of the rules of property, contract, and tort, look as though it flows from and is required by legal reasoning rather than being a matter of politics and economics.").
63. Notably, in my experience, many law students resist the engagement with complexity that this form of education requires.