Legal Commentary

Various discussions on prawfs have focused on reforming legal education, introducing new courses and methods to the curriculum, and rethinking what future lawyers need for  successful (and diverse) legal careers.  Jason Solomon (Georgia) has posted his forthcoming Law and Governance in the 21st Century Regulatory State (Texas Law Review, Vol. 86, 2008). In this review essay,  Solomon looks at two new books, a casebook and an edited collection, that together invoke the juncture of legal education and theory about the regulation and governance. The first, Law and New Governance in the EU and the US, edited by Gráinne de Búrca and Joanne Scott, is "a collection of works by some of the leading scholars in the "new governance" field." (Shameless plug: check out my chapter on OSHA and the EEOC). The second, The Regulatory and Administrative State: Materials, Cases, Comments, by Lisa Heinzerling and Mark Tushnet, is "one of the first casebooks for a class on the regulatory state, as well as the first book from Oxford University Press's new Twenty-First Century Legal Education series." (Shameless plug: Tushnet and Heinzerling focus on the regulation of risk to explore law and governance, and they use excerpts of my ALR article, Interlocking Regulatory and Industrial Relations, to demonstrate some of these experiments in the field of safety and health).
Solomon argues that legal scholarship and pedagogy on the regulatory state are at parallel  junctures, and by linking the two books and other developments in the legal academy, he demonstrates a concerted scholarly effort to rethink the role of the state and a curricular effort to place the study of these efforts at the core of legal education.

I recommend the essay to anyone new to new governance theory as well as to those who have been writing in the field. Solomon also has some interesting critique. In his words:

I think both books are tremendously important and largely succeed on their own terms. But I argue that they share a common flaw: a lack of attention to the "adversarial legalism" that pervades American policymaking and implementation, and the role of lawyers. This inadequacy threatens both the power of new governance as an overarching regulatory theory and the pedagogical potential of promising curricular reforms. I suggest future directions for new governance scholarship, and for courses on lawyering in the regulatory state.