CONTEXTUALIZING REGIMES: INSTITUTIONALIZATION AS A RESPONSE TO THE LIMITS OF INTERPRETATION AND POLICY ENGINEERING

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 res...

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Bibliographic Details
Published in:Michigan law review 2012-05, Vol.110 (7), p.1265-1308
Main Authors: Sabel, Charles F., Simon, William H.
Format: Article
Language:English
Subjects:
Administrative agencies
Agricultural commodities
Civil law
Civil rights
Confrontation (Criminal law)
Criticism, Textual
Decision making
Dolphins
Engineering
Environmental law
Evaluation
Evidence, Scientific
Food law
Food safety
Government agencies
Government regulation
Industrial regulation
International organizations
Interpretation and construction
Juvenile courts
Language
Law
Laws, regulations and rules
Legislators
Legislatures
Mortality
Public law
Public opinion
Public policy
Social aspects
Statutory law
Subpoenas
Trade regulations
Trials
Tuna
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Summary: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 regimes is 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).
ISSN:0026-2234
1939-8557