In this review of two books, Reviewing Law and New Governance in the EU and the US and The Regulatory and Administrative State: Materials, Cases, Comments, Professor Solomon considers the emerging scholarship of “new governance”—an experimental policymaking trend that is replacing the “command-and-control” top-down approach that characterized the post-New Deal regulatory state.
In new governance approaches, agencies and other standard-setting bodies are creating increasingly participatory and horizontal mechanisms for producing and policing standards. An example of a new governance model is the No Child Left Behind Act, which combines federal involvement with flexible implementation by the states. These new governance developments have fueled scholarly and curricular responses: the first book in the review is a collection of scholarly essays on new governance in the EU and the United States, and the second represents the changes in law-school curricula that reflect this latest trend of administrative law.
In this Review Essay, Professor Solomon seeks to connect the emerging scholarship and the curricular developments. He commends the approaches taken by both books; however, he argues that scholarship in this area should spend more time considering what conditions lead to the success of new governance models and praises those pieces that did so. Professor Solomon also criticizes Heinzerling and Tushnet’s casebook for emphasizing the perspectives of policymakers and state actors over that of lawyers. For example, Professor Solomon faults the casebook for spending too much time explaining the economic and political reasons necessitating the administrative state and not enough on issues central to lawyering, such as canons of statutory construction.
In general, while Professor Solomon welcomes the addition of these works to the literature of new governance and administrative law, he argues that both could benefit greatly by accounting for the American culture of “adversarial legalism” in evaluating the prospects and scalability of new governance models. Thus, an increased focus on the role of lawyers in an adversarial legal system will enrich new governance scholarship and strengthen the pedagogical value of administrative law courses.
