Courts as Catalysts: Rethinking the Judicial Role in New Governance

Abstract

This Article offers a step forward in developing a theory of judicial role within new governance, drawing on the emerging practice in both the United States and Europe as a basis for this reconceptualization. The traditional conception of the role of the judiciary – as norm elaborators and enforcers – is both descriptively and normatively incomplete, and thus needs to be rethought. There is a significant but limited role for courts as catalysts. In areas of normative uncertainty or complexity, courts prompt and create occasions for normatively motivated and accountable inquiry and remediation by actors involved in new governance processes. Catalysts thus facilitate the realization of process values and principles that are crucial to new governance's legitimacy and efficacy by the institutional actors responsible for norm elaboration within new governance. The relationship between courts and governance is dynamic and reciprocal: courts both draw upon the practice of governance in their construction of the criteria they apply to their judgments; and provide an incentive structure for participation, transparency, principled decision-making, and accountability which in turn shapes, directly and indirectly, the political and deliberative process.\nThis Article elaborates three crucial aspects of the catalyst role, drawing on examples from the European Union (E.U.) to illustrate how courts can exercise their decision-making authority to enhance the capacity of other actors to make legitimate and effective decisions. First, courts prompt new governance institutions to provide for full and fair participation by those affected by or responsible for new governance processes. We focus in this Article upon the courts' role in evaluating standing in the European courts (locus standi). Second, courts monitor the adequacy of the epistemic or information base for decision-making within new governance. We explore this role through the example of the European court's construction and interpretation of benchmarks for legality in judicial review. Finally, courts foster principled decision-making in new governance processes through requiring transparency and accountability as an essential element of enforceability. We illustrate this role through examples where the European courts evaluate the adequacy of deliberative processes by whether they have identified, justified, and applied criteria guiding their decisions.

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