NEW GOVERNANCE, PREEMPTIVE SELF-REGULATION, AND THE BLURRING OF BOUNDARIES IN REGULATORY THEORY AND PRACTICE

In the literature on "new governance" forms of regulation, the blurring of traditional boundaries is a pervasive but largely implicit theme. This Article makes this theme explicit, and argues that the capacity to blur boundaries is one of new governance's signature strengths. New governance regulation frequently blurs the roles of regulatory actors, the stages of regulation, the modes of regulation, the functions of a regulatory regime; and the structure of the regulatory regime. The Article applies this lens to a series of case studies, and demonstrates how industry attempts at preemptive self-regulation have created opportunities where new governance forms of regulation could have emerged. Turning prescriptive, this Article calls attention to the political and strategic dynamics around attempts to regulate new domains, and calls on policymakers and scholars to embrace the blurred boundaries of new governance approaches as a possible approach that combines the best of state-centered and self-regulatory forms of governance.