Courts as Catalysts: Re-Thinking the Judicial Role in New Governance

Abstract

This Article offers a step forward in developing a theory of the judicial role within new governance, drawing on the emerging practice in both the United State 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, courts prompt 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 legitimacy principles by the institutional actors responsbile for norm elaboration within new governance. The relationship between courts and governance is dynamic and reciprocal: courts draw upon the practice of governance in their construction of the criteria they apply to their judgments. They also provide an incentive structure for participation, transparency, principled decision-making, and accountability which in turn shapes, directly and indirectly, the political and deliberative process.