When New Government Fails
Douglas NeJaime, When New Government Fails, 70 Ohio St. L.J. 323 (2009).
New Governance scholars have responded to critiques of rights-based, state-centered, top-down strategies by turning toward flexible, collaborative public-private partnerships and by locating lawyers as problem solvers rather than as traditional advocates. Intervening in a variety of substantive fields, these scholars often position New Governance as an ambitious project that seeks to usher in a new paradigm of public problem solving. This Article pulls back on the enthusiastic embrace of New Governance, instead situating it as a contingent model of cause lawyering that complements, rather than replaces, previous advocacy models, including rights-claiming litigation. To do so, this Article draws out professional and representational objections to New Governance. First, New Governance scholars often neglect cause lawyers, treat lawyers like other institutional actors, or priovide insufficiently concrete lawyer roles. Accordingly, lawyers might resist New Governance practice based on their professional identities. Next, the process-oriented focus of New Governance theory poses representational issues for lawyers working on behalf of marginalized constituents. New Governance process might merely reinscribe existing power dynamics and render challenges to outcomes more difficult. As a counterbalance to the overabundance of success stories in the New Governance literature, this Article locates these professional and representational objections in accounts of New Governance failure drawn from the identity-based domains of sexual orientation, gender, and religion. These stories of New Governance failure reveal challenges facing New Governance theory and begin to expose conditions conducive to New Governance practice. At the same time, they suggest the continued relevance of rights-claiming, court-centered strategies.