Joanne Scott (UCL, London) and Susan Sturm (Columbia) have posted Courts as Catalysts: Rethinking the Judicial Role in New Governance on SSRN (Columbia Journal of European Law 2007). This is the abstract, below are some brief comments:
This Article offers a step forward in developing a theory of judicial role within new governance, drawing on the emerging practice in both the United States and Europe as a basis for this reconceptualization. The traditional conception of the role of the judiciary - as norm elaborators and enforcers - is both descriptively and normatively incomplete, and thus needs to be rethought. There is a significant but limited role for courts as catalysts. In areas of normative uncertainty or complexity, courts prompt and create occasions for normatively motivated and accountable inquiry and remediation by actors involved in new governance processes. Catalysts thus facilitate the realization of process values and principles that are crucial to new governance's legitimacy and efficacy by the institutional actors responsible for norm elaboration within new governance. The relationship between courts and governance is dynamic and reciprocal: courts both draw upon the practice of governance in their construction of the criteria they apply to their judgments; and provide an incentive structure for participation, transparency, principled decision-making, and accountability which in turn shapes, directly and indirectly, the political and deliberative process.
This Article elaborates three crucial aspects of the catalyst role, drawing on examples from the European Union (E.U.) to illustrate how courts can exercise their decision-making authority to enhance the capacity of other actors to make legitimate and effective decisions. First, courts prompt new governance institutions to provide for full and fair participation by those affected by or responsible for new governance processes. We focus in this Article upon the courts' role in evaluating standing in the European courts (locus standi). Second, courts monitor the adequacy of the epistemic or information base for decision-making within new governance. We explore this role through the example of the European court's construction and interpretation of benchmarks for legality in judicial review. Finally, courts foster principled decision-making in new governance processes through requiring transparency and accountability as an essential element of enforceability. We illustrate this role through examples where the European courts evaluate the adequacy of deliberative processes by whether they have identified, justified, and applied criteria guiding their decisions.
A few brief notes: As with Cass Sunstein's famous 1989 article Interpreting Statutes in the Regulatory Age, Scott and Sturm's very interesting piece also raises the question of whether 'new' settings for judicial review - 'the regulatory age' for Sunstein, 'new governance' for Scott and Sturm - represent new, qualitatively different conditions and challenges for courts or whether they are better understood as institutional and normative environments in which renewed attention to undervalued dimensions of judicial review generally may be especially valuable. In his article, Sunstein noted on the one hand that the demands of the modern administrative state made it impossible for courts to sustain certain theories of interpretation, but at the same time admitted in a footnote that Roscoe Pound had voiced similar issues over 80 years ago. That of course did not mean that his theory was not valuable, even if the conditions in and for which it was conceived were not entirely 'new'.
So too with Scott and Sturm's article, in my view. It may be that their comments are most profitably understood not within the limited context of the 'new governance' debate, but as a revaluation of a number of generally neglected aspects of judicial review. Two of these dimensions stand out. (1) Scott and Sturm rightly, in my view, stress the impossibility of distinguishing between procedural and substantive elements in judicial review. 'New governance' settings provide especially accute illustrations of the many ways in which these two elements are intertwined. (2) The article is also especially interesting in its emphasis on 'structural' conceptions of the role of courts, rather than - as is traditionally often the case - on their roles in effectuating individual rights or solving specific conflicts. This element becomes particularly evident in the authors' original discussion of standing requirements at the European Court of Justice (esp. p. 14 in the SSRN version).