S. Rebuilding Government

This course studies the theory and practice of public institutional design. It focuses on recent efforts to make government simultaneously more adaptable and more accountable. Government increasingly encounters problems for which traditional bureaucracy seems ill-suited because of its limited ability to shape its practices to varying circumstances and to adapt to new understanding. One set of responses to this situation emphasizes small interventions designed to correct market imperfections – for example, “nudges” that favor particular choices but permit opting out – and the incorporation of market principles into public regulation and services – for example, emissions trading or school vouchers. We will examine this approach, but our principal focus will be on another set of responses that has been less salient in the legal academy but at least as important in practice. These responses are sometimes labeled “new governance” or “democratic experimentalism.” They decentralize initiative in order to induce local experimentation, while building central institutions to assess local performance and pool information about the efficacy of different practices. While the market-oriented responses emphasize individual choice, new governance responses emphasize ongoing deliberation by stakeholders at both local and central levels. We will look at both general accounts and case studies of such initiatives from the United States, the European Union, and transnational regimes. Examples will be drawn from industry regulation (for example, air pollution and health-and-safety), social welfare (for example, “new accountability” educational reform and child protective services reform), and civil rights (for example, police abuse and prison conditions). We will pay attention to legal doctrine at points where it induces and structures organizational design, and a recurring question will be what the changes in the organizational form of public programs imply for public and international law. Readings will be made available in e-form. We will reserve some flexibility to introduce readings responsive to the needs and interests of the class. Evaluation: Class participation and a paper.