A Response to the Video

Let me preface my remarks by informing you that I am not a lawyer. That means that there are things I don\u27t get and things that I\u27ll say that you may not grasp immediately, because there are certain assumptions we don\u27t share. To illustrate that, let me just tell you, I don\u27t even get lawyer jokes. For example, when I saw the movie So Goes A Nation, and Sam Sue says, Law schools teach basic skills, I didn\u27t realize that was a joke until you all laughed at it. So there are many subtleties of this sort that escape me. And absent experience and some deeper form of spontaneous communion, and in blatant disregard for the most elementary lessons of community organizing, instead of connecting my own non-existent experience to the film, I\u27m just going to modestly propose a strategy for the reform of legal services – in connection with these community-based initiatives. What else could I do in total ignorance

Fixing the Climate: Charles Sabel in Conversation with Filippo Barbera

In this interview with Filippo Barbera, Charles F. Sabel discusses his latest book, Fixing the Climate (Princeton University Press, 2022, with D.G. Victor), that dramatically reorients our thinking about the climate crisis. It provides a road map to institutional design oriented around concrete problem-solving that can finally lead to self-sustaining reductions in emissions that years of global diplomacy have failed to deliver. The discussion touches upon a number of key issues of general interest for social scientists: global governance; decisions under uncertainty and risk; pragmatic solutions to wicked problems; technological solutions and innovation

Trade Agreements, Regulatory Sovereignty and Democratic Legitimacy

Governments increasingly are seeking to use bilateral and regional trade agreements to reduce the cost-increasing effects of differences in product market regulation. They also pursue regulatory cooperation independent of trade agreements. It is important to understand what is being done through bilateral or plurilateral mechanisms to address regulatory differences, and to identify what, if any, role trade agreements can play in supporting international regulatory cooperation. This paper reflects on experience to date in regulatory cooperation and the provisions of recent trade agreements involving advanced economies that have included regulatory cooperation. We argue for a re-thinking by trade officials of the modalities and design of trade negotiations and the incorporation of institutional mechanisms that draw on insights of experimentalist governance approaches to enhance the scope for international regulatory cooperation

Building a Good Jobs Economy

Conventional models are failing throughout the world. In the developed world, the welfare state-compensation model has been in retrenchment for some time, and the drawbacks of the neoliberal conception that has superseded it are increasingly evident. Yet there is no compelling alternative on offer. In the developing world, the conventional, tried-and-tested model of industrialization has run out of steam. In both sets of societies a combination of technological and economic forces (in particular, globalization) is creating or exacerbating productive/technological dualism, with a segment of advanced production in metropolitan areas that thrives on the uncertainty generated by the knowledge economy co-existing with a mass of relatively less productive activities and communities that neither contributes to nor benefits from innovation. The sizes of these two sectors and the trajectories leading into them may vary, but otherwise the nature of the underlying problem seems to have converged in the developed and developing worlds

The Uncertain Future of Administrative Law

A volatile series of presidential transitions has only intensified the century-long conflict between progressive defenders and conservative critics of the administrative state. Yet neither side has adequately confronted the fact that the growth of uncertainty and the corresponding spread of guidance – a kind of provisional “rule” that invites its own revision – mark a break in the development of the administrative state as significant as the rise of notice-and-comment rulemaking in the 1960s and 1970s. Whereas rulemaking corrected social shortsightedness by enlisting science in the service of lawful administration, guidance acknowledges that both science and law are in need of continual correction. Administrative law has the resources to ensure that the provisionality of guidance does not lead to the abuses that conservatives fear. But to deploy those resources – and to carry through the reforms of administrative organization that are their natural complement – progressives must rethink their commitments to judicial deference to administrative authority and administrative deference to presidential authority, commitments on which the progressive defense of the administrative state currently depends

The Duty of Responsible Administration and the Problem of Police Accountability

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When law-makers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors’ exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and to make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing circumstances. We illustrate the doctrinal and administrative changes with a study of policing. We discuss court-supervised reforms in New York and Cincinnati as examples of contrasting trajectories that these developments can take. Both initiatives are better understood in terms of an implicit duty of responsible administration than as an expression of any particular substantive right. However, the Cincinnati intervention reaches more deeply into core administrative practices and indeed mandates a particular crime control strategy – Problem-Oriented Policing. As such, it typifies a more ambitious type of structural civil-rights intervention that parallels comprehensive civil-rights initiatives in other areas

A Constitution of Democratic Experimentalism

In this Article, Professors Dorf and Sabel identify a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that affect them. In democratic experimentalism, subnational units of government are broadly free to set goals and to choose the means to attain them. Regulatory agencies set and ensure compliance with national objectives by means of bestpractice performance standards based on information that regulated entities provide in return for the freedom to experiment with solutions they prefer. The authors argue that this type of self-government is currently emerging in settings as diverse as the regulation of nuclear power plants, community policing, procurement of sophisticated military hardware, environmental regulation, and child-protective services. The Article claims further that a shift towards democratic experimentalism holds out the promise of reducing the distance between, on the one hand, the Madisonian ideal of a limited government assured by a complex division of powers and, on the other hand, the governmental reality characteristic of the New Deal synthesis, in which an all-powerful Congress delegates much of its authority to expert agencies that are checked by the courts when they infringe individual rights, but are otherwise assumed to act in the public interest. Professors Dorf and Sabel argue that the combination of decentralization and mutual monitoring intrinsic to democratic experimentalism better protects the constitutional ideal than do doctrines of federalism and the separation of powers, so at odds with current circumstances, that courts recognize the futility of applying them consistently in practice by limiting themselves to fitful declarations of their validity in principle. For example, conventional administrative law imposes external judicial checks on administrative agencies, obliging judges to choose between superficial scrutiny of formal proprieties and disruptive, indeed often paralyzing, inquiry into what an idealized agency might be expected to do. By contrast, democratic experimentalism requires the social actors, separately and in exchange with each other, to take constitutional considerations into account in their decisionmaking. The administrative agency assists the actors even while monitoring their performance by scrutinizing the reactions of each to relevant proposals by the others. The courts then determine whether the agency has met its obligations to foster and generalize the results of this information pooling. Agencies and courts alike use the rich record of the parties\u27 intentions, as interpreted by their acts contained in the continuing, comparative evaluation of experimentation itself In the administrative and related settings, the aim of democratic experimentalism is to democratize public decisionmaking from within, and so lessen the burdens on a judiciary that today awkwardly superintends the every-day workings of democracy from an external vantage point. Finally, the Article reconceptualizes constitutional rights. Relying in this and other regards on ideas associated with early-twentieth-century American pragmatism, the Article treats disagreements over rights as principally about how to implement widely shared general principles. Under the heading of prophylactic rules and related doctrines, the United States Supreme Court has recognized that there are often a variety of acceptable remedies for a violation of rights or a variety of acceptable means of achieving a constitutionally mandated end. The authors argue for a radical extension of these doctrines, in which judicial recognition of a general, core right, permits substantial experimentation about how to implement that right. They propose institutional mechanisms to facilitate such experimentation. The authors contend, however, that with rights, as with other constitutionally entrenched principles, means and ends cannot be neatly separated, so that experimentation at the periphery also redefines the core, ultimately challenging the very distinction between core and periphery

How to Fix the Climate

Can the world meet the challenge of climate change? After more than three decades of global negotiations, the prognosis looks bleak. The most ambitious diplomatic efforts have focused on a series of virtually global agreements such as the Kyoto Protocol of 1997 and the Paris Agreement of 2015. With so many diverse interests across so many countries, it has been hard to get global agreement simply on the need for action; meaningful consensus has been even more elusive. Profound uncertainty about the effectiveness of various mitigation measures has made it difficult to estimate the cost of deep cuts in emissions