Collaborative governance in the administrative state

Recent efforts at regulatory reinvention have consisted mostly of attempts to constrain agency discretion through the imposition of judicial, congressional, or executive oversight of agency activity. In this Article, Professor Jody Freeman argues that these reform efforts do not respond to the most serious weaknesses of rule making, implementation, and enforcement, many of which are the result of an adversarial administrative decision-making process driven by the theory and practice of interest representation. Professor Freeman proposes a model of collaborative governance as an alternative to the model of interest representation, arguing that the assumptions that inform interest representation limit its explanatory capacity and normative appeal. Collaborative governance requires problem solving, broad participation, provisional solutions, the sharing of regulatory responsibility across the public-private divide, and a flexible, engaged agency. Using examples from health and safety and environmental regulation at the OSHA and the EPA, Professor Freeman illustrates how regulatory negotiation and the EPA's Project XL embody elements of a collaborative model. She then explains why, despite their promise, these experiments fall short of the collaborative ideal. Professor Freeman next describes the most common objections to such ''cooperative,'' ''coregulatoy, or ''reflexive'' processes-that they undermine legitimacy by reducing accountability and subdelegate public responsibilities to private parties-and explains that the typical response to such concern, which is to constrain agency discretion, itself frustrates the collaborative impulse. While collaboration may require greater deference to agency decision making at a minimum, Professor Freeman argues that the pursuit of collaboration requires a willingness to transcend traditional debates about agency discretion and to experiment with non-additional forms of accountability.