Contextualizing Regimes: Institutionalization as a Response to the Limits of Interpretation and Policy Engineering

45 Pages Posted: 4 Apr 2012 Last revised: 23 May 2012

See all articles by Charles Sabel

Charles Sabel

Columbia University - Columbia Law School

William H. Simon

Columbia University - Law School; Stanford University - Stanford Law School

Date Written: April 4, 2012

Abstract

When legal language and the effects of public intervention are indeterminate, generalist lawmakers (legislatures, courts, top-level administrators) often rely on the normative output of contextualizing regimes - institutions that structure deliberative engagement by stakeholders and articulate the resulting understanding. Examples include the familiar practices of delegation and deference to administrative agencies in public law and to trade associations in private law. We argue that resorting to contextualizing regimesis becoming increasingly common across a broad range of issues and that the structure of emerging regimes is evolving away from the well studied agency and trade association examples. The newer regimes mix public and private participation in novel ways. Their structures are less hierarchical than those of traditional administrative agencies and less clearly bounded than those of traditional trade associations. While the traditional regimes function to make solutions developed in more specialized realms available to generalist lawmakers, the newer ones function to organize collaborative inquiry where neither specialists nor generalists have well-developed understandings of problems or solutions. We explore the structure of such regimes and their relation to generalist lawmakers through three examples - a health and safety regime that straddles private and public law (the California Leafy Greens Products Handler Marketing Agreement), a civil rights regime (the Juvenile Detention Alternatives Initiative), and an international environmental regime (the Dolphin Conservation Program of the Inter-American Tropical Tuna Commission).

Suggested Citation

Sabel, Charles Frederick and Simon, William H., Contextualizing Regimes: Institutionalization as a Response to the Limits of Interpretation and Policy Engineering (April 4, 2012). Michigan Law Review, Vol. 110, May 2012, Forthcomig, Stanford Public Law Working Paper No. 2034501, Columbia Public Law Research Paper No. WP 12-302, Available at SSRN: https://ssrn.com/abstract=2034501

Charles Frederick Sabel

Columbia University - Columbia Law School ( email )

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William H. Simon (Contact Author)

Columbia University - Law School ( email )

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Stanford University - Stanford Law School ( email )

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