13 Colum. J. Eur. L. 539 (2007)

David M. Trubek. Voss-Bascom Professor of Law Emeritus, University of Wisconsin Law School; Senior Fellow, Center for World Affairs and the Global Economy (WAGE), University of Wisconsin.

Louise G. Trubek. Clinical Professor of Law and Director of the Health Law Project, University of Wisconsin Law School.

New approaches to regulation have emerged to deal with inadequacies of traditional command and control systems. Such “new governance” mechanisms are designed to increase flexibility, improve participation, foster experimentation and deliberation, and accommodate regulation by multiple levels of government. In many cases, these mechanisms co-exist with conventional forms of regulation. As new forms of governance emerge in arenas regulated by conventional legal processes, a wide range of configurations is possible. The purpose of this Article is to provide a preliminary mapping of such relationships, using examples drawn from the European Union and the United States. When traditional law and new governance are yoked together in a hybrid form, we might speak of a real transformation in the law. In other cases, systems of law and new governance may exist in parallel but not fuse together. Where both systems co- exist but do not fuse, there are numerous possible configurations and relationships among them. One might launch the other, as when formal law is used to mandate a new governance approach. Or, they might operate independently yet both may have an effect on the same policy domain. Finally, in some areas one system may take over the field, either because new governance methods replace traditional law altogether, or because opposition to innovation halts efforts to employ new approaches.