The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought

Abstract

Over half a century ago, the New Deal signified a paradigm shift in the American polity. Under the mandate of relief, recovery, and reform, the modern regulatory administrative state was created. At the beginning of the twenty-first century, a new paradigm is emerging that ties together recent developments in the political-economy with advances in legal and democratic theory. This article introduces the new vision as a shift from the traditional New Deal Regulatory model to a Renew Deal Governance model. The article both asserts the emergence of a new model and critically explores the interplay among its various elements. It unpacks the widespread claims of newness in the field of law, asking why legal projects seek to be innovative and to what they respond. At the same time, it offers a comprehensive map for understanding renewal projects collectively, including the internal competition among the possible meanings and interpretations of the emerging paradigm. Integrating into a unified framework central works at the micro-level of doctrine, at the macro-level of administrative and constitutional law, and at the meta-level of jurisprudence, the article explores the possibility of renewal through adoption of a new legal model. Through both theoretical inquiry and case study, the article describes the organizing principles of the governance model, which consist of increased participation of non-state actors, public/private collaboration, diversity and competition, decentralization and subsidiarity, integration of policy domains, flexibility and non-coerciveness (soft law), adaptability and learning, and finally, legal orchestration. These features are closely analyzed in three leading domains of governance - new workplace policies, civic environmentalism, and cyberdemocracy. The article argues that new governance is purposely and ingeniously designed as a school of theoretical and practical hybridization, drawing together elements from rival schools of thought and critical insights concerning both regulatory and market failures. Through the pragmatic synthesis of legal approaches, the governance model confronts the false dilemma of centralized regulation and deregulatory devolution. The article concludes with a discussion of the normative challenges that are evoked in the nascent governance regime of the twenty-first century, and suggests ways in which democracy, accountability, and legitimacy are advanced in the Renew Deal Era.

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