In a happy continuation from earlier this year, Professors Maria Paula Bucci (Brazil) and Bill Clune (US) carry forward their ongoing dialogue on Law and Public Policy (LPP) – a conversation firmly situated in the Law-and-Society law-in-action tradition within which New Legal Realism is rooted. It is also centrally concerned with how best to translate between social science and law, a core issue for NLR – and at the same time it exemplifies the kind of discussion beyond the boundaries of global north disciplinary traditions envisioned by NLR from its inception. This part of the exchange begins with Professor Bucci’s explication of LPP, putting her own and Clune’s ideas into conversation with other frameworks developed by theorists such as Ostrum, Sabatier, Esping-Andersen, Unger, Santos, and Pellissery, Mathew, Govindjee & Narrain. (See our Sept blog post for part 2, by Clune, & a small NLR bibliography on point):
Law and Public Policy by William Clune: From the welfare state to post-pandemic reconstruction
Maria Paula Dallari Bucci[1]
Introduction
A couple of years ago in my research on Law and Public Policy (LPP) I rediscovered seminal works of Professor William Clune. Then, fortunately, he accepted my invitation to participate in two online classes at the University of São Paulo Law School in October 2021 and May 2022. We collaborated on a “dual production” on the New Legal Realism blog[2]. A book will be published in Brazil[3] with William Clune’s selected works translated into Portuguese and some comments, highlighting his remarkable contributions to LPP.
This article aims to demonstrate the relevance of William Clune’s perspective on the reconstruction of the social state relying on his analysis of LPP, updated in a recent paper[4]. The main topics are addressed in three sections. The first section will examine the problem of a general model of knowledge applied to LPP in order to treat the findings of sparse research in LPP in a cumulative fashion. The second section will focus on Clune’s contribution to understanding the relationship between law and politics, highlighting his pragmatic reformist approach. Finally, the third section will analyze the general model of LPP in a cross-national perspective, especially the applicability of a model based on developed countries to others where market economies have not been completely established independently of the state.
Law and Public Policy (LPP) arises in the context of the welfare state, when “the material welfare of large numbers of people”[5] has been achieved in levels previously unknown. The U.S. administrative state emerged in a vast and dynamic capitalist economy that required an institutional framework for regulation and redistribution. This is the “active state”[6] in which “governments pass laws and use them to effectuate policies”[7].
The content of the welfare state varies in developed economies, as Esping-Andersen showed in his classic typology based on empirical comparative studies [8]. In a narrow sense, it means social amelioration (income transfers and social services), in a broader view, the “Keynesian state” with “the state’s larger role in managing and organizing the economy” (employment, wages, and overall macro-economic steering). The criteria considered are political class coalitions and the balance between market and public services, with effects on “decommodification,” meaning the alternatives people have to jobs and salaries. He clusters the main historical experiences as follows: i) the liberal, in the United States, Canada, and Australia, where the benefits are modest and often stigmatize the beneficiaries[9]; ii) the corporatist-state, in Germany, France, Austria, and Italy, where the preservation of status differences in the access to government-provided benefits has a negligible redistributive impact and iii) the social-democratic, in the Scandinavian countries, where universal solidarity means that there are no market conditions on entitlements which benefit everyone and everyone is obliged to pay for (through taxes).
The functions of the welfare state are twofold. On the one hand, through regulation it stabilizes capitalism against disruption, with institutions such as antitrust and securities regulation. Currently environmental protection could be added, although with a more crucial role for human survival[10]. On the other hand, there is the effort of the welfare state to transform capitalism by extending social citizenship and diminishing wealth stratification:
“The extension of social rights has always been regarded as the essence of social policy. Inspired by the contributions of Karl Polanyi, we choose to view social rights in terms of their capacity for ‘de-commodification.’ The outstanding criterion for social rights must be the degree to which they permit people to make their living standards independent of pure market forces. It is in this sense that social rights diminish citizen’s status as ‘commodities.’”[11]
Public policies are the materialization of social rights in the welfare state. Different strategies among the various countries can be explained by institutional factors in each. In the U.S., despite Esping-Andersen’s negative appraisal, this new kind of state was realized through the crafting of governmental programs, coupled with a shift in the political dynamics of Congress and the Executive, which meant a new democratic balance. Theodore Lowi stated that “policies determine politics”[12] while analyzing the passage of the 19th to the 20th century when the axis of gravity of U.S. policy, until then almost exclusively in Congress (politics) and its committees, began to involve the government, meaning the executive, in the drafting of policies. In the 1930s, Roosevelt expanded government on all fronts, and “policies changed politics, regardless of the men or parties that occupied the presidency or organized the Congress”[13]. The hallmark of this “revolution,” which lasted until the 1970s, translated public pressure into policies, at the same time transforming policies into significant political forces.[14]
The argument of this article is that we now need collective organization to revitalize democracy, and this can be recovered by the approach to law and public policy developed during the New Deal – legal institutional arrangements that mix political and legal features with enduring effects – and for this effort, we need a better understanding of LPP and its methods.
The world in the post-pandemic period requires collective action for the common good to offset negative effects such as poverty, famine, and setbacks in education and mental health. Amid a profound crisis of democracy when parties and politics are discredited there is a search for renewed political legitimization and public policy able to provide inclusion, a sense of belonging, and healing of societies.
Skepticism about the possibility of reconstructing a social state is understandable[15]. Retrenchment comes from within the system, with parties that act through democratic mechanisms to attack democracy. The growth of reactionary forces is discouraging for progressives. Labor unions that shaped deals with capital are weakened. Their struggle now is much tougher against the so-called gig[16] economies. The state’s frailty is evident. In addition, there is no efficient regulation to contain oligopolistic social media businesses (Amazon, Facebook, Apple, Google, and Microsoft). These companies act globally and undermine traditional political and social structures. Although splitting the companies up has been debated by U.S. Congress and European Union Commissions, until now it seems that no national or supranational institution has the power to protect people against abuses from the unbounded power of corporations that recognize no borders.
If traditional politics is threatened, why should we expect public policies not to be affected in the same way? Western societies experienced a similar need for public solutions when facing a dramatic crisis in the unstable years of the 1920s following WWI[17]. The New Deal and the welfare states of European countries after WWII were not produced spontaneously but arose from new forms of political action combined with new economic and legal tools. They weren’t a given but a construct. What have we learned from the building of public policies in those times?
Like then, social forces are eager for transformation, nowadays gender and racial, political minorities, inspiring traditional movements to overhaul their methods. The “emergence of empowerment as a model for designing policies”[18], which founded a cautious optimism by William Clune about the potential for progressivism in the 1990s, has not changed essentially. Seldom in the mainstream, such forces nevertheless search for space in the ebb and flow of industrial economy history:
“Progressivism holds its ground amidst reversals, intermittently advancing policies for the public good at the national, state, and local levels. Segments of the populace may resent government ideologically, but problems arise and invite solutions. (…) In the long run, progressivism has a deep well of strength because its policies are popular, shield people from harm, and create new levels of freedom for individuals and families. Nothing can happen overnight. Many of the deep divisions being stoked today have a very long history, but change does occur. As progressives, we will move forward understanding our deepest values.”[19]
When we understand politics as a long-term activity, contemporary victories and defeats are generally not definitive. Esping-Andersen notes that contrary to the belief that welfare states were more likely to develop in democratic societies,
“the thesis confronts the historical oddity that the first major welfare-state initiatives occurred prior to democracy and were powerfully motivated by the desire to arrest its realization. This was certainly the case in France under Napoleon III, in Germany under Bismarck, and in Austria under von Taaffe.”[20]
Esping-Andersen also challenges the idea that the decline of the welfare state arose when heavy expenditures caused backlash movements against high taxes. “Paradoxically, the opposite is true. Anti-welfare state sentiments over the past decade have generally been weakest where welfare spending has been heaviest” because of “the class character of welfare-states.”[21]
The strategies of social movements should consider past accomplishments not with a sense of nostalgia but with a focus on the repertoire of policies and on consolidating alliances for progressivist measures. The answer can be found from a long run perspective[22] not in the immediate past. Success does not require reconstruction of the welfare state but rather putting organized collective action into practice.
No matter the difficulties, some relevant initiatives have been crafted in recent years. In the European Union, the Next Generation program focused on transitioning to a green and digital economy.[23] In the U.S., programs supported by a bipartisan agreement[24] have been approved to counterbalance the risk of an economic downturn. Maybe these initiatives are not sufficient in the face of increasing international instability, war, inflation, and climate change. Yet, this seems to be the more promising path. In the same way that the New Deal political order arose based on a set of policies that matched the needs of that time[25], some authors envision the emergence of a new political order through the configuration of another set of policies[26].
1. The need for a method to aggregate social knowledge: Clune’s model for LPP
The great variety of topics and research perspectives on LPP is a challenge for understanding its general features. A precious base of public policies has been built, with beneficial effects on public health, educational performance, protection of the environment, and so forth. But these diverse policies do not obviously convert to a common model.
LPP is not recognized as a scholarly area nor a field.[27] Even well-established courses in Public Policies master’s degree programs don’t have dedicated professors or a specific bibliography that relates Law to Public Policy. A literature review[28] shows that these courses usually source their materials in correlated areas such as Sociology, Economics, and Public Affairs. Although meaningful, these areas don’t cope with specific legal issues. Besides, frequently the authors dealing with legal topics have non-legal backgrounds and are aiming to “translate” legal idiosyncrasies into “understandable” language, in the process losing important legal features.
Thus knowledge in LPP remains dispersed and fragmented.[29] Generally, LPP studies focus on specific issues, such as “basic education public policy in the city of X,” “human rights in the country of Y and the policy of security,” and so on. This is not a problem, besides the fact that they stand like islands. Each researcher needs to build his/her distinct theoretical framework based in their field’s particular assumptions. There is little evolution in LPP as a cumulative, connected process.
To learn from one experience or study to another, a research community needs to work on common grounds. It requires parameters for convergence among authors from different fields that embrace this approach, instead of considering LPP a closed scholarly field. What are the epistemic affinities among researchers trained in distinct areas or practitioners in diverse sectors of public policy? Taking into account the legal field, how can a structured process of growing social knowledge be established from the experiences of public policies? What are the conditions for it to develop into a democratic technology of governance? Or should we say, what are the conditions for a renewed social state that considers public policy as the “child of social engineering in welfare states”? [30]
This is the role of frameworks and models of knowledge. Clune has presented it in A Political Model for Implementation of Public Policy[31], a dense and insightful article written in 1983 and still up to date. Thinking of social transformation through law, he gives a refined perception of how to cope with the variety of relations between law and politics, composed into public policies. As we search for an accumulative social knowledge method, it’s worth recovering the concern for a “general model.” [32]
“A general model of implementation could be extremely helpful. Existing work on implementation is both partial and fragmented. It is partial because what is commonly considered research on implementation really is research on various parts of the process. It is fragmented because this research is nowhere interrelated or synthesized, or even summarized succinctly in one place.”[33]
Despite the clarity of this assumption, Clune needed to refute the criticism about the value of a model as if it was not properly theoretical:
“The model used in this Article is most similar to the models used in systems analysis. Indeed, Easton’s pioneering book (…) D. EASTON, A Systems Analysis of Political Life (1965). (…). Some social scientists strongly disapprove of the word model as applied to the kind of model used in this Article. Wirt and Kirst suggest that a systems model should be considered ‘heuristic theory,’ a ‘heuristic scheme,’ or a ‘framework for political analysis,’ rather than ‘theory in its traditional sense’ (‘a set of … related propositions which include among them some law-like generalizations and which can be assigned specific truth value via empirical tests’).”[34]
This debate is curious, as the value of heuristic models is well-known in the theories of public policy. The most notorious cognitive scheme in the field is the cycle of public policies also called the “stages heuristic.”
“Until the mid-1980s, the most influential framework for understanding the policy process – particularly among American scholars – was the ‘stages heuristic,’ or what Nakamura (1987) termed ‘textbook approach.’ As developed by Laswell (1956), Jones (1970), Anderson (1975), and Brewer and De Leon (1983), it divided the policy process into a series of stages – usually agenda setting, policy formulation and legitimation, implementation, and evaluation – and discussed some of the factors affecting the process within each stage. The stages heuristic served a useful purpose in the 1970s and early 1980s by dividing the very complex policy process into discrete stages and by simulating some excellent research within specific stages – particularly agenda-setting (Cobb, Ross, and Ross 1976; Kingdon 1984; Nelson 1984) and policy implementation (Pressman and Wildavsky 1973; Hjern and Hull 1982; Mazmanian and Sabatier 1983).”[35]
However, according to Sabatier, in the late 1980s the stages heuristic started to be contested due to the inaccuracy of the sequence of the stages and the lack of a causal explanation for the policy process. But I wonder if the true reason for the later abandonment of the heuristic in the 2nd edition of his book was the significance of the legal element, a bit disturbing in a multidisciplinary dialogue. Despite their intrinsic interdisciplinarity, Public Policy scholarly communities usually reject the legal approach[36].
“The stages heuristic has a very legalistic, top-down bias in which the focus is typically on the passage and implementation of a major piece of legislation. This focus neglects the interaction of the implementation and evaluation of numerous pieces of legislation – none of them preeminent – within a given policy domain (Hjern and Hull 1982; Sabatier 1986). The assumption that there is a single policy cycle focused on a major piece of legislation oversimplifies the usual process of multiple, interacting cycles involving numerous policy proposals and statutes at multiple levels of government.”[37]
Left aside, the legal theory needed to create its own schemes; the need for specific models of legal relations in LPP is uncontested. Clune’s model is quite valuable in tackling the varieties of legal instruments in public policy and the plurality of political contexts. Due to the diversity of patterns of legal relations in and around the governmental sphere, there is no alternative for an LPP model other than to be heuristic. It must evolve from one discovery to another in a conscious path of sedimentation of the learning process. This is the only way to avoid a false simplification and rapid assumptions of the domination of law by politics. Moreover, this kind of model is needed if we want to translate into legal categories, recognizable by legal operators, the progressive goals in a transformative perspective. If we want to pass from the condition of critical outsiders to insider active participants – even leaders of the transformative process – we need to pursue the reorganization of these notions in a systematic way, as a consciously arranged web of concepts, norms, and legal relations.
The importance of Clune’s model contribution must be emphasized since what explains the sparse development of Law and Public Policy is the overcomplexity of the subject, combined with the paucity of theoretical foundations and specific legal cognitive simplification schemes. According to Sabatier, the role of these schemes is: i) to simplify a complex world, ii) to identify the strategies to do this, and iii) to select adequate theoretical frameworks: this selection is based on the consistency of data brought by the compatibility among the categories chosen and the purposes of a given perspective. [38]
An additional point is a relationship between empirical research and its conceptual underpinnings. The reciprocal feeding of both processes is a condition for a deeper understanding of the phenomena in consideration, as put by Elinor Ostrom: “knowledge is increased through the continuous coming and going of empirical observation and serious efforts at theoretical formulation”[39]. Similar information on many scenarios provides the empirical basis to improve our theoretical understanding of how institutions work and how individuals change them. The continuous structuring of knowledge, based on this interaction between theory and empiricism – Ostrom’s significant methodological contribution[40]– results in several types of representations, with different scopes, dealing with the specificities of each field: i) conceptual framework: set of variables and the relationships between them; ii) theory: a denser set of relationships with greater logical coherence (the same conceptual framework can be used by different theories); iii) model: representation of a specific situation; usually with a more precise scope.[41]
According to this classification, maybe Clune’s proposal could be defined as a framework rather than a model. But this doesn’t affect its ability to provide a basis for evolving knowledge in LPP. Applying it to “highly impressionistic”[42] implementation case studies and discussing the method’s choice (qualitative or quantitative), Clune observes that “theory has a profound influence on method,” once “the nature of theory can force a researcher into thinking about reality in completely different ways and observing and reporting different things.”[43] The questions formulated lead to the possible answers. Maybe the weakness of the contributions of LPP as a whole and its limited use are due to a lack of awareness of its potential. This is the role of a methodological debate.
2. A model for dealing with the relationship between politics and law in LPP
The role of politics is paramount to LPP. One of Clune’s Political Model’s main contributions is to intertwine the legal element and its political and social environment. Under the influence of legal realism, the law-in-action is put in perspective to analyze the interactions among actors and organizations in the implementation process. It is still very innovative to overcome “the lag between legal culture and legal reality,” composing “the formal constructs of jurisprudence, legal research, and policy analysis with practical aspects of the modem legal process.”[44] This composition harbors a tension between opposing trends; “since the advent of legal realism, legal discourse relies extensively upon ‘policy arguments,’ referring to something both powerful and peripheral to the meaning of the text.”[45] In Legal Disintegration and a Theory of the State[46], arguably under the influence of German literature on the state,[47] Clune demonstrates the dialectic interaction between the legal mainstream – property, contracts, and torts – and a new legal world that abridges regulation, Public Law, and the fields that emerged in the context of the administrative state. The two streams – the traditional and the new, or the private and public – are interdependent, as shown in a sophisticated observation of the modes of their integration.
The patterns of relations between law and politics integrate the LPP general model[48] as its most remarkable contribution. This could be seen as connecting with an intellectual agenda put forward by Critical Legal Studies (CLS). But Clune’s prospect looks more promising for an LPP approach.
Unger criticizes the frustrating movement of CLS for denouncing the politics hidden in the apparent neutrality of law. Under the guise of improving the law based on principles and policies, progressivists have mistakenly reinforced the formalist position. Instead of fighting against the basic forms that shape relations in capitalist society – free market and republican democracy (what he calls the typological reasoning) – progressists have contributed to enhancing this typology. And they eventually lost “the political contest over the content of law.” [49]
This kind of polarized reasoning about law, especially against the systemic legal building that arose from the 19th century, is not new. Many scholars tried to deconstruct it. But the formally structured gapless building of “conceptions, categories, and rules, that together define a plan of common life”[50] seems to remain solid. Pierre Bourdieu refers to the ineffectiveness of the Marxist critical tradition in deconstructing the neutrality of the state, producing a sort of counterapproach instead.
“This critical view of the state is often accepted without discussion. If it is easy to say easy things about the state, it is because, both by position and by tradition (…), the producers and receivers of discourse on the state like to have a somewhat anarchistic disposition, a disposition of socially established rebellion against authority. (…) they are only the pure and simple reversal of the ordinary definition, having in common with this definition that they reduce the question of the state to the question of function, substituting for the divine state a diabolical state, substituting for ‘optimistic functionalism’ – the state as instrument of consensus, as a neutral site on which conflicts are managed – a diabolical state, diabolus in machina, a state that always operates by what I call a ‘pessimistic functionalism’ in the service of the dominant, in a manner that is more or less direct or sophisticated. ”[51]
Maybe this is rooted in the battle between the strategies of the worker’s movements in the aftermath of World Word I, with the creation of the Soviet Union as a watershed for reform or revolution approaches. Reformists defended an incremental transformation process within the institutions, especially the parliament, while revolutionaries only believed in the most profound ruptures of the structures in each society[52]. The strength of the revolutionary idea is so great amongst the traditional left that reformism has been portrayed as a social conformism, if not the betrayal of emancipatory purposes, even though the main path for progressive practices was reformist, built by political coalitions, and approved by the parliaments. The revolutionary narrative against the structures of capitalism seems to have hampered the development of the reformist legal thought[53], despite its huge importance in the functioning of the welfare state in the following decades, with the participation of progressive parties (social-democrats, socialists, and Christian-democrats[54], in European countries) in the crafting of fundamental legislation to implement entitlements.
Another remarkable feature of William Clune’s work is contributing to closing this gap, as he overtly presents implementation as the “reformist political fabrication.”[55] Although belonging to a different tradition, the U.S. reformism that came along with progressivism,[56] the contrast with the structural revolutionary conception is still valid.
Following the CLS trail about the connections between the legal and political plans, Clune sheds light on the moments of policy formation and implementation as a continuum in the law-making process. This overcomes the traditional idea of a political moment of creation of the law, followed by a legal-technical phase of applying it, the dilemma described by Unger: “the jurist is (…) in charge of quadrating a circle: reconciling law as an expression of the immanent normative order in social life with law as a contingent result of political struggles that end with legislation.”[57] This traditional vision also poses a political problem by challenging the democratic foundations of the legal process:
“Those who had struggled in politics over the content of law in the name of clashing interests and visions would have acted as the unwitting servants of an immanent logic of social evolution. Had they done so, the pretense of democracy to subject the terms of social life to collective self-determination would be discredited.”[58]
Clune’s theory offers parameters to go beyond naïve common sense notion that we need to “purify” law of politics. Maybe there is not the law, but different expressions of legal phenomenon. The point is how different organized movements – progressives and reactionary, in his words – struggle to shape the law according to their interests. Policy formation is the first stage of the political dispute when organized groups obtain a legal mandate, the implementation is the specification of this mandate; the conflict is present all over the spectrum of legal creation, from the legal draft to a court decision:[59]
“The model is political in the sense that the two phases of law-making — policy formation and implementation — are represented as a process of struggle, conflict, and compromise among contending interest groups. (…) different phases may involve different balances of power, and the politics may take quite different forms.”[60]
The political element is the key to the model. Politics is the drive that gives motion to the legal process; “social reformers and their opponents are active at every stage.”[61] The idea of conflict among contending forces is the guiding thread of the methodological map presented in the Political Model. Implementation is an interactive process, with actions and reactions throughout the legal process no matter the arena, the legislative or administrative processes, or the courts as well:[62]
“Any given legal or political action may be met with a reaction by the organizations affected. Thus, a bill or a judicial decree introduced to enforce civil rights maybe met with legislative initiatives designed to dilute it or to reinforce it. Regulations enacted under legislation may be met with political resistance and the regulations may be revoked. Enforcement measures such as threatened sanctions may be greeted with political backlash designed to produce a withdrawal of the threat (…)”[63]
This realistic approach fosters the integration of legal instruments into policy design. To describe the outcomes of the opposing movements[64], a diagram of legal behaviors is proposed: i) laws (legal commands); ii) legal incentives (essentially enforcement), and iii) legal compliance or noncompliance.”[65]. They are logically organized in a sequence of standard interactions: (I) the downward cycle: i) policy formation; ii) deployment of legal incentives; iii) responses of regulated organizations; iv) deployment/response interactions; and (II) the upward cycle: i) influence on the formal policies of regulating agencies by insiders and insider/outsider alliances; ii) influence on legislatures by insiders and outsiders to obtain changes in underlying mandates (statutes).[66]
This clustering and pattern description allows a perception at once concrete and generalizable. The relationship between empirical knowledge and abstract categories[67] reveals its importance when applied to legal sanctions, for the option of complying or not complying with the rules is not just a legal problem but mainly a strategic choice oriented by political reasoning. Violation is an important reference for the meaning of the law since “the ‘purpose’ of a law does not exist in the abstract; it exists in arguments that the letter or spirit of a law is being violated.”[68] The sanction theory[69] deals with the plasticity of the use of coercion or incentives by political authorities, going far beyond the critical common sense that denounces the manipulation of sanctions as a shallow political matter.
The model presents an array of variations that explain different tactics embedded in modeling public policies: struggle, conflict, and compromise. Political victories in obtaining legal instruments or symbols are also presented in a gradation: compromise, symbolic victory, and fizzles.This nuanced analytical palette can be applied in any phase of the legal process.
Finally, Clune differentiatespolicies and politics on the macro and micro levels of modern law, a refined twofold perspective to deal with political issues within the legal system. According to him, in the U.S. federal system, national policy and legislation are designed and enacted through politics at a macro level (the top) while implementation and its politics operate locally (the bottom):
“Considered separately, implementations constitute the microlevel of modem law, the interactions between organizations over particular social programs. New roles for law and lawyers typically are experienced at this level, the level of purposive action and political conflict. (…) Law in the modern state consists of organizations confronting each other in legalized sectors of public policy-sectors of government interacting with shadow governments created to cope with them. Because modern law at the macro level concerns the coordination and legitimation of this legion of substantive interactions, new legal roles at the macro level typically are experienced by upper-level political representatives and judges, as well as by informational elites.”[70]
Curiously, I developed a different framework from other sources, where the “zooming” perspective for the governmental action is divided into three similar levels: macro, meso, and micro institutional.[71] The last concentrates on the bureaucrats and regulators, while the first is the realm of the “ruling class.” The intermediate level is the compounding of the legal-institutional arrangements. This differentiation is important when examining the roles of political parties and the regular bureaucracies in sharing political duties. Even though political compromise and substantive rationality (consequentialism) are parallel forces driving transformation through law, each has its rationale. Substantive rationality acts through legal categories and language. To produce legal solutions on a large scale or to scale up the existing ones, patterns of political compromise must be translated into legal procedures. This happens with the ones applied to consensus building – public hearings, negotiation, and round tables in the drafting of regulating norms, and so on–, and with the instruments of coordination and articulation, that are vital for an LPP approach.
But in successful public policies, there is a risk of emptying their political character. When they come through – in conjunction with adequate management, satisfactory legal-institutional design, and enough funding – there is a trend toward invisibility. The performance of public policies is not noticed, except in cases of failure. This threatens to erode the political support they need along with management, funding, and sound legal grounds.
So we can see a sample of issues for an LPP research agenda. Assuming the plurality of expressions both of politics and law, dealing with them in a more purposive way through public policy means obtaining a more accurate understanding of the relationship between these variations. Clune’s model paved the way for this.
3. Final remarks. The applications of Clune’s model in the perspective of a cross-national dialogue in LPP
Since movements from the developing world start to explore the cleavage between central (“North”) and peripheral countries (“Global South”), the dialogue among them has evolved. The so-called South-South dialogue[72] has contributed a critical perspective on the idea of importing institutions from the developed world as a means to accelerate development in the Global South. However, this cleavage conceals that, especially at the meso level, considering not the main political movements but the measures in the intermediate level of implementation, there can be many similarities between the experiences in the developed and developing world. Despite the differences at the macro level, such as the ones that come from positioning in colonial history, maybe there could be fruitful reciprocal learning from the South and the North about LPP, due to the added richness of experiences in public policies. Not all of them depend exclusively on abundant funding, as observed above. For instance, legislative control of a policy, subject to the pressure of interest groups,[73] follows political and social patterns that can be understood in different countries.
On some issues, Brazilian progressives seem to be taking a path inspired by the New Deal regarding the welfare state.[74] That historical experience influenced the global democratization wave in the 1990s – in Latin America and the southern European countries (Portugal and Spain, which consider themselves the periphery of Europe, along with Greece, Ireland, and Italy), and South Africa, where the expression “transformative constitution” originated[75].
From India and South Africa come the authors of one of the rare books adopting a general perspective about LPP, anchored in transformative constitutionalism under the title The Transformative Law and Public Policy [76]. The first chapter begins with the intriguing question: Why is Law Central to Public Policy Process in the Global South?[77] Coming from Brazil, in the Global South, I wonder what can be specific in Southern LPP, believing part of the answer can be found in the expectations placed on the paper of the newly edited constitutions.
“How does law interfere with public policy? (…) The constitutional lens frames the law as a site of values which should guide and modulate public policymaking. We argue that particularly in the Global South, where the legitimacy of the post-colonial state is based upon its ability to ensure social, economic and political justice to its people, constitutions become the source of values.”[78]
In the same way as I did, these authors performed a literature review[79] and were equally frustrated by the lack of a theoretical common basis for LPP:
“A review of academic journals dealing with the question of law and policy (…) fails to find common ground between these two disciplines. Yet, independently, both these disciplines invoke each other’s support for their own effectiveness. Policy clarity is considered as a precursor of good law. In a similar vein, without translating policies into legal texts and authorities, there is very little force for policy.”[80]
The authors showed a similar concern about the effectiveness problem, as in developing countries there is a frequent expectation that law provides public policy a strength that cannot be obtained from political organization itself.[81] Despite lacking the industrial affluence that supported a free-market economy and the deals between capital and labor unions – those ones following guidelines usually set in the corporate matrix abroad – countries in the Global South often expect the adoption of legal institutional arrangements similar to those in the developed world to be sufficient to enforce constitutional entitlements.
But the role of the market and its relationship with the state is contested. A free enterprise system, a central concept to William Clune’s model [82], is highly distrusted. The state has multiple roles in the economy; besides regulation – sometimes over or dysfunctional – subsidies are expected for a very diverse set of relevant purposes.
These are important themes for the intercultural dialogue. Analyzing them in this perspective means to face well-known difficulty in comparative research. One way to address it is to choose patterns for comparable topics, such as Esping-Andersen’s typology previously mentioned. The LPP model proposed by William Clune can provide a basis for the construction of specific typologies or diagrams, in addition to, or as a development of, the ones referring to the relationship among law and politics described above. Legal practices within selected programs, such as education and health, can be the object for the comparison. But since lawyers usually don’t have the training to compare the outcomes of policies in economics, finance, and specific subjects, such as educational data and health statistics, a strategy for an LPP approach can be to focus on meaningful categories in the design or procedures for implementing public policies, following the path of implementation of a piece of legislation, from the moment of enacting the act to the final judicial decision about its validity.[83]
I conclude this article with the record of the dialogue between me and Prof. Clune when I pointed out institutionalization as a meaningful category for legal work. Derived from the concept of institution – which means permanence, organization, and depersonalization, according to Santi Romano[84], a Jurisprudence conservative Italian author from the beginning of the 20th century – institutionalization is a key concept to understanding how policies are built. It concerns how a movement in society demanding the regulation of a particular field can turn into formal rules. For this reason, legal training can be valuable in public policies when the focus is institutional legal design, institutional legal arrangements, and institutional models, problems that require legal expertise to cope with translating political and social will into legal clauses, legal commands, and legal norms that shape incentives.
William Clune finally remarked:
“What makes comparisons possible is that countries tend to enact and implement policies in standard areas, such as health care, income assistance, education, environment, sanitation, housing, food, etc. All fit to some extent the idea of progressivism as public goods, equity, and advancement of the general welfare Policies become similar because of the common problems they confront and the common policy models and designs for each problem area that have been disseminated and diffused across societies. Such models are often accompanied by research on the relative effectiveness of different policy options, such as universal basic income vs. unemployment insurance. But the specific histories and paths of policies in different countries are context-specific and path dependent. Cross-cultural dialogues about policy typically require translation of local context. To be sure, “policy translation” is also required within a common cultural setting because of the intricacies of policy design and technical knowledge in different policy areas (education, environment, health, etc.). An expert in education policy may not be as expert in environmental policy. Both within and across societies a general framework for LPP and familiarity with different areas of policy are valuable in policy conversations.
A complicating factor is that policies are not only complex and path-dependent but frequently involve overlapping policies and laws at the national, regional, and local levels as well as multiple actors, complex politics, and distributed change efforts. Referring to such policy mosaics as “institutions” may overstate the extent of policy coherence. Institutionalism is probably most useful as a framework for research, design, and action around major durable structures of social welfare policy. But some measure of institutionalization exists in whatever pieces or fragments of the policy mosaic are in play at any given time. Reforms are always in some state of advance or retreat toward coherence and effectiveness. Researchers can help by locating reforms against some goal or vision of more effective policy and by understanding the deep legal structure of social welfare problem solving as proposed in our LPP framework.”[85]
[1] Professor of the University of São Paulo (USP) Law School, at São Paulo, Brazil. Former Brazilian Secretary of Higher Education (2008-2010) and Legal Counsel of the Education Secretary (2005- 2008). mariapaula@usp.br.
[2] CLUNE, William. Progressivism in the Active Free Enterprise State: Fluidity, Fragmentation, and Stability. New Legal Realism. Law and Society, 04/01/2022 (link). BUCCI, Maria Paula Dallari. Law and Public Policy in Brazil and the United States: A North-South Dialogue, 04/01/2022. In Bucci & Clune. A South-North Dialogue. New Legal Realism. Law and Society (link).
[3] BUCCI, Maria Paula Dallari (editor). Direito e Políticas Públicas: a Contribuição de William Clune. Belo Horizonte: Editora Forum (forthcoming).
[4] CLUNE, William H., Law and Public Policy: What Is It, Skills of Practitioners and Researchers, Research Designs and Methods, Law School Courses (July 5, 2022). Univ. of Wisconsin Legal Studies Research Paper No. 1751, 2022. Available at SSRN: https://ssrn.com/abstract=4154531.
[5] CLUNE, William. Law and Public Policy: Map of an Area. Southern California Law Journal, n.2, v. 1, 1993, p. 1-39, p. 1.
[6] CLUNE. Progressivism in the Active Free Enterprise State, cit. The expression is borrowed from Ackerman, Bruce (1983). Foreword: Law in the Activist State. 92 Yale L.J. 1083, no. 7, 1083-84.
[7] CLUNE. Map of an Area, cit., p. 2. “Policy (…) is the framework for modern free market economies and modern welfare states that regulate economic production, consumption, and exchange. Most law in modern states responds to the needs and consequences of vast, dynamic and autonomous economic infrastructures and systems. And modern legal institutions tend to assume a characteristic form, stable over time, functionally autonomous, a delicate balance between central guidance and decentralized action.”
[8] ESPING-ANDERSEN, Gosta. The Three Worlds of Welfare Capitalism. New Jersey: Princeton University Press. 1990.
[9] I, as many authors, rely on this typology; nevertheless, it has some significant flaws. The stigma factor in the U.S. can be contested, considering for example the central role of education in the U.S. social state that seems to have been neglected by Esping-Andersen. See TYACK, David B. The One Best System: A History of American Urban Education. Cambridge/London: Harvard University Press, 1974.
[10] CLUNE. Progressivism in the Active Free Enterprise State, cit.
[11] ESPING-ANDERSEN. The Three Worlds of Welfare Capitalism, cit. p. 3.
[12] LOWI, Theodore J. Four Systems of Policy, Politics, and Choice. Public Administration Review, v. 32, n. 4, 1972, p. 298-310.
[13] LOWI, Four Systems of Policy, Politics, and Choice, cit. p. 302.
[14] “The relation between public policy and the general welfare has become, during the past decade (the 1930s), one of the central issues in American government. Legislative, executive, and judicial interpretations have given new life to a phrase in the Constitution which had for more than half a century lain dormant as an instrument of public policy. In the arena of national action, varying concepts of the meaning of the general welfare once more emerged as battle cries of opposing interests.” BRADLEY, Phillips. Foreword to BEARD, Charles. Public Policy and the General Welfare. New York. Farrar and Rinehart, 1941, p. vii.
[15] CLUNE. Progressivism in the Active Free Enterprise State, cit. “The title of this blog may seem strange and contradictory. How could there be free enterprise, an active state, and progressivism? (…) Any notion of bipartisan agreement on the role of the federal government might seem strange in a time of ferocious conflict over its role. But (…) both political parties support free enterprise as a source of prosperity and jobs as well as many aspects of federal law created during progressive eras that prevent disruption of the economy, insure against income loss, and support education. The conflict is real, but it is focused on certain kinds of policies and programs. A key question to be discussed is which parts of the active state and progressivism are stable and secure and which parts are under siege and at risk of retreat or even destruction.”
[16] https://www.nytimes.com/2021/12/09/technology/european-commission-gig-workers-uber.html
[17] POLANYI, Karl. The Great Transformation. The Political and Economic Origins of Our Time. Boston: Beacon Press, 2001.
[18] CLUNE. Map of an area, cit., p. 2.
[19] CLUNE. Progressivism in the Active Free Enterprise State, cit.
[20] ESPING-ANDERSEN, The Three Worlds of Welfare Capitalism, cit., p. 15. Another inaccurate piece of information in the text informs that the development of the welfare state was retarded in the USA because early agrarian democracies, dominated by small property owners, used their electoral powers to reduce, not raise, taxes. Casting doubt on this is the case of U.S democracy, and back to the education example, public education has been funded by a tax on property in the USA.
[21] ESPING-ANDERSEN, The Three Worlds of Welfare Capitalism, cit., p. 32-33.
[22] “Longitudinal, that is, a study of change over time. The longitudinal context is the long history of progressivism in the United States including the recent conservative countermovement”. […]
“Critical social and economic needs keep arising due to strong crosscurrents in the economy and society. The Pandemic was one example, also climate change, also immigration and the workforce, monopolies and inflation, high economic returns to education and well-trained workers, and protection of families from economic disaster. So even at the top level, we can expect episodes of progressive action in response to crises, and crises are guaranteed. In the longer run, isn’t it true that the empowerment of workers is radically inconsistent with power in the oligarchy? So, the gridlock and stagnation have some permanence but are also frequently, suddenly, and massively breached. National policy as lurching progressivism.” (Clune, notes for class v3, May 2022)
[23] Next Generation European Union. Recovery Plan for Europe (link). “The adoption of the recovery plan was not only a politically bold move but also a case of creative legal engineering. Its architects had to deal with a number of central issues of EU institutional law, including the principle of conferral and the choice of the appropriate legal basis, the constraints imposed by the EU’s public finance system, the respect of the institutional balance, and the shaping of a governance mechanism for the plan’s implementation.” DE WITTE, Bruno. The European Union’s COVID-19 recovery plan: The legal engineering of an economic policy shift, Common Market Law Review, Volume 58, Issue 3, 2021, p. 635-682.
[24] CLUNE. Progressivism in the Active Free Enterprise State, cit.
[25] Progressivist reformers had taken a similar path before, backing a specific set of initiatives. La Follette, for instance, as governor of the state of Wisconsin, in 1904, used his political power in a moment when he controlled the executive and legislative branches of the government and “established a railroad commission; made primary elections a reality; created a civil service commission; strengthed an already existing tax commission; and adopted anti-lobbying, banking, and conservation legislation.” LEVINE, Daniel. Varieties of Reform Thought. Madison: The State Historical Society of Wisconsin, 1964, p. 99. The image of the alluvial state used by Clune to refer to the ensemble of public policies that shape the modern state is very adequate to visualize it. “Taken collectively, implementations constitute the modern state. Multiply any particular implementation in the diverse areas of substantive policy by ten thousand, and the result is the welfare and regulatory state. Implementations are the alluvial formative process of the modern state, and law-as-state is the sum total of the structures and continuing interactions left as deposits by a multitude of separate implementations.” CLUNE, Political Model, cit., p. 99.
[26] GERSTLE, Gary. The Rise and Fall of the Neoliberal Order. America and the World in the Free Market Era. Oxford University Press, 2022. The author refers to the Trump administration: “If deregulation, judicial appointments, and tax cuts pointed toward the maintenance of a neoliberal order, however, Trump’s assault on free trade and immigration aimed at its destruction. (…) Trump seized every opportunity to remove America from the international position it had long held as the leader of a globalizing and free trade world.” (p. 271)
[27] In the introduction of Law and Public Policy: Map of an Area, Clune says: “The article also serves as the analytical framework for a course I developed in Law and Public Policy (in La Follette School of Public Affairs at the University of Wisconsin). In order to prepare the course materials, I had to define the subject and distinguish it from that of other courses; for example, why not simply teach a set of interesting topics in constitutional law and theory? Or, if policy has something to do with legal impact and sociolegal institutions, why not teach a standard course in sociology of law or law and economics?” CLUNE. Law and Public Policy: Map of an Area, cit., p. 1. This concern is still up to date since almost no materials are available for this kind of course.
[28] SOUZA & BUCCI. O Estado da Arte da Abordagem Direito e Políticas Públicas em Âmbito Internacional: Primeiras Aproximações. Rio de Janeiro: Revista Estudos Institucionais, v. 5, n. 3, 2019.
[29] “Ideas about law and public policy are the common currency of a large part of our society and the universe of legal academic discourse. Since law school I have found this discourse, this universe, disconcertingly enormous, dynamic, expansive, fragmented, and chaotic (as though the modern economy is the ‘big bang’ of social and economic life). The effort to simplify, clarify, and illuminate such a universe seems well worthwhile.” CLUNE. Law and Public Policy: Map of an Area, cit., p. 2.
[30] CLUNE, William. A Political Model of Implementation and Implications of the Model for Public Policy, Research, and the Changing Roles of Law and Lawyers. 69 Iowa L. Rev. 47 (1983-1984), p. 49-125, p. 47; CLUNE, William. Law and Public Policy: Map of an Area, cit., p. 2.
[31] CLUNE. A Political Model, cit., p. 49-125.
[32] Clune’s model has different features and perspectives; the challenge is making it straightforward for the legal researcher to build social knowledge.
[33] CLUNE. A Political Model, cit., p. 52.
[34] CLUNE. A Political Model, cit., p. 49, note 2. Clune refuses to be criticized under the guise of ‘non-positivist’, while he elaborates on the idea: “In this Article, model does not mean a set of variables with quantifiably specified links capable of statistical falsification. (…) The model presented here is a verbal schematic of typical actors and interactions. As such, it is descriptive of a broad range of implementations. It is not at all predictive of what might occur in particular implementations, because it has been formulated to be sufficiently general to cover all implementations. The model is predictive, and falsifiable, insofar as it is inconsistent with competing ‘pictures’ of the basic form of implementation.”
[35] SABATIER, Paul (editor). Theories of the Policy Process. 2nd edition. Colorado: Westview Press, 2007, p. 6-7.
[36] At the 2019 Congress of the IPPA-International Public Policy Association, none dealt with the legal perspective among two hundred working groups. The call for articles in the Association’s journal explicitly excluded it, despite presenting itself as a big tent for the diversity of trends and methods. “The journal hosts contributions on theories of the policy process, empirical tests of models, agenda-setting, decisions, policy instruments policy types, policy change, policy implementation, evaluation & appraisal, and a host of other social-scientific issues revolving around public policy. IRPP publishes both comparative studies and single case studies. Methodologically, it is completely open to individual methods (such as experiments, statistics, qualitative and interpretive methods) as well as to mixed-methods contributions. The IRPP does not discriminate against any ontological presupposition. An important aim of the journal is to publish research that has high translation value – by this, we mean policy research that makes a broad range of findings available to policy-makers, civil society organizations, pressure groups, and citizens concerned about policy issues. The journal does not accept political/policy commentary, explanations of legislation and courts decisions, and personal opinions.” (http://www.ippapublicpolicy.org/announcement/international-review-of-public-policy-irpp- submit-an-article/224). The exception, highlighted in the original, puts in the same level of production unworthy of scholar credit the personal and political opinions, the analysis of legislation, and comments on judicial decisions.
[37] SABATIER. Theories of the Policy Process, cit., p. 7.
[38] SABATIER. Theories of the Policy Process, cit.
[39] OSTROM, Elinor. El Gobierno de los Bienes Comunes. La Evolución de las Instituciones de Acción Colectiva. Mexico: FCE/UNAM, 2011, p. 23. Retranslated into English.
[40] SABATIER, Theories of the Policy Process, cit., p. 09.
[41] OSTROM, Elinor. Institutional Rational Choice: An Assessment of the Institutional Analysis and Development Framework. In SABATIER, Paul (editor). Theories of the Policy Process. 2nd edition. Colorado: Westview Press, 2007, p. 21-64.
[42] CLUNE. A Political Model of Implementation, cit., p. 97.
[43] CLUNE. A Political Model of Implementation, cit., p. 96-97. “Theory plays just as important role as subject matter in the choice of research method. Theory is anything that specifies what is interesting or significant about reality in an infinite number of ways. For practical purposes, reality is infinitely complex, and the human mind can think about reality in an infinite number of ways. Any kind of coherent presentation necessarily involves some system of selection, simplification, and ordering. Such a system is called theory, although the word sometimes is applied in a more limited way to formal systems. In that sense, theory is not academic or esoteric; it is simply inevitable, although it may be done unconsciously or badly.”
[44] CLUNE. Political Model, cit., p. 50-51.
[45] CLUNE. Political Model, cit., p. 1.
[46] CLUNE, William. Legal Disintegration and a Theory of the State. In Critical Legal Theory: A German-American Debate. Baden-Baden: Nomos Verlagsgesellschaft, 1989, p. 187-208.
[47] Clune has a collaboration with Gunther Teubner present in several chapters published during a European stay. References to Clune’s work by Teubner, especially about the problem of models and theories, register this meaningful debate. See, for instance, TEUBNER, Gunther. After Legal Instrumentalism. Strategic Models of Post-Regulatory Law. In TEUBNER, Gunther (editor). Dilemmas of Law in the Welfare State. New York-Berlin: Walter de Gruyter, 1988, p. 299-325, or Clune’s chapter in TEUBNER G. & FEBBRAJO A. (eds.) State, Law, and Economy as Autopoietic Systems Regulation and Autonomy in a New Perspective. Milan, Giuffrè, 1992.
[48] CLUNE. Political Model, cit., p. 47. “With a general model, research on implementation could be categorized according to various factors, such as what part of the process is described and what point of view is taken. Apart from helping to organize existing research, a general model helps one to understand the implementation process and thus has theoretical value. The model itself has a certain predictive, explanatory, and sensitizing power concerning what is likely to occur during implementation and why. The simple presentation of the process in its actual form tacitly denies a legion of possible rival hypotheses about the implementation process and sensitizes researchers about what to investigate. Also, certain general implications of the model usefully can be inferred, especially insofar as these ideas depart from other views of implementation or have obvious implications for research. When part of the process is considered without reference to other parts, a sense of the realistic constraints on implementation alternatives may be lacking.”
[49] UNGER, Roberto Mangabeira. The Critical Legal Studies Movement: Another Time, a Greater Task. London/New York: Verso, 2015.
[50] UNGER. The Critical Legal Studies Movement, cit., p. 54.
[51] BOURDIEU, Pierre. On the State. Lectures at the College de France, 1989-1992. Edited by Patrick Champagne, Remi Lenoir, Franck Poupeau, and Marie-Christine Riviere. Translated by David Fernbach. Polity Press: Cambridge-UK/Malden-USA, 2014, p. 6. Unger sees a similar position for Marxist theory. “The self-appointed central task of nineteenth-century legal science had been to work out what it took to be the inbuilt legal content of a type of social, political, and economic organization: notably, the legal regime of a “free society.” It was a conception that conservative jurists shared with the necessitarian social theories of the same period, even those, like Marxism, that saw the prevailing regime as destined to be superseded. According to this typological idea, the established institutional and ideological order, expressed in law, is an indivisible system, with inherent legal substance, not just a loose and contingent amalgamation of compromises, impositions, and accidents.” UNGER, The Critical Legal Studies Movement, cit., p. 8.
[52] LUXEMBURG, Rosa. Reform or Revolution? Reprint of the 2nd edition, 1908. Paris: Foreign Languages Press, 2020.
[53] BUCCI, Maria Paula Dallari. A Questão da Unidade nas Relações entre o Jurídico e o Político: do Reformismo do Estado Social à Renovação da Teoria do Estado (The Question of the Unity in the Legal Political Relations: From the Reformism of the Social State to the Renewal of the Theory of the State). Rio de Janeiro: Revista Estudos Institucionais. v. 7, n. 3, p. 908-933, sept./dec. 2021.
[54] ACCETTI, Carlo I. What is Christian Democracy? Politics, Religion and Ideology. Great Britain: Cambridge University Press, 2019.
[55] CLUNE, Political Model, cit., p. 78. The reformist tradition in the USA has its own history, based not on the international workers movement, but mainly on the national progressivism, from the end of the 19th century.
[56] LEVINE, Daniel. Varieties of Reform Thought, cit.
[57] “(…) there is a “contrast between law as the embodiment of impersonal principles of the just or of policies responsive to the collective interest and law as ad hoc agreements, or lines of truce, between interests and ideologies, colliding.” UNGER, Roberto Mangabeira. O movimento de estudos críticos do direito: outro tempo, tarefa maior. Belo Horizonte (MG): Letramento: Casa do Direito, 2017, p. 11-94, p. 14. Translated into English by me. The Brazilian version of the article has some differences from the original published in U.S.
[58] UNGER. The Critical Legal Studies Movement, cit., p. 6.
[59] “Politics is an intrinsic and essential component of LPP. Policies are made by politics. LPP involves the political actions, political parties, and interest groups seeking reform as well as those holding progressive reforms in place or seeking retrenchment. In a sense, policies – and policy implementation – represent never ending fluid alluvial equilibriums in the shifting tides of politics. LPP importantly includes intentional, organized, planned, and potential efforts to change the rules. These are progressive reform efforts aimed at extending public welfare and equity, planned, in progress, and completed, the social movements and actors supporting such change, and the opposite – reactionary change efforts aimed at eroding progressive laws and institutions – sometimes with disagreements over which policies are and are not in the greatest public good. Perhaps we might distinguish PLPP, progressive LPP, from RLPP, reactionary LPP, because LPP activists from both directions require the same set of knowledge and skills.” CLUNE. Law and Public Policy. What it is, cit., p. 2.
[60] CLUNE. Political Model, cit., p. 53 and p. 68. “The structure of a law and its legislative history not only may reveal the nature of the underlying social aspirations, but also may help to explain the technical scope and limits of the legal enactment of the social purpose.”
[61] CLUNE. Political Model, cit, p. 55.
[62] CLUNE, Political Model, cit., p. 54.
[63] CLUNE. Political Model, cit, p. 56.
[64] CLUNE. Political Model, cit., p. 59.
[65] CLUNE. Political Model, cit, p. 54, table 1.
[66] CLUNE. Political Model, cit, p. 57, table 2
[67] “Sanction theories also are characterized by a high degree of abstraction. The idea that ‘carrots work better than sticks,’ for example, may be asserted as valid across all areas of substantive law and all institutional contexts. In theory, there is a neutral trade-off between abstractness and concreteness. Abstract theories sacrifice realism and contingent statements of how they apply in particular circumstances; but they provide power, may be generalized, and are easily communicated. Highly concrete theories are realistic and appropriately qualified to individual circumstances; but, because of their idiosyncrasy, they may provide little useful general knowledge. Highly idiosyncratic knowledge is essentially secret. (…) good abstract theory is extremely useful. Abstract theory provides a broader perspective, and also generalizes from concrete research to prevent redundant particularized studies.” CLUNE. Political Model, cit, p. 81.
[68] CLUNE. Political Model, cit, p. 53-54.
[69] “The largest category of implementation research falls into what is called ‘sanction theory.’ Sanction theories posit a relationship between the type and intensity of governmental intervention and the degree and kind of compliance or noncompliance. In this sense, both theories of regulation (what type of legal mechanism works best) and theories of incentives and deterrence (the effect of rewards vs. the effect of punishments) are considered sanction theories. The general relationship explored by sanction theories is the one between governmental interventions with specified characteristics and resulting compliance responses.” CLUNE. Political Model, cit, p. 78.
[70]CLUNE. A Political Model of Implementation, cit., p. 99.
[71] “The bonds between law and politics can be considered the ‘primeval interdisciplinarity.’ Analyzing them sheds light on how this articulation works at three different levels: a) the micro level, which describes the relations among individuals in a granular focus regarding specific rules applied to the actors of a public policy; b) the meso level, which concerns the organization of the factors that provide unity to a particular legal-institutional arrangement; and c) the macro level, in which are located the conflicts between the main organized political forces that drive the fundamental decisions of public policy. At the macro level, the social state is defined by the systematic prevalence of public policies that favor progressive goals. At the meso level, public policies can be defined as governmental action programs resulting from a legally regulated set of processes to coordinate public and private activities to achieve chosen goals. At the micro level, the efforts must be oriented to improve each of the particular aspects of the public policy, including the legal ones. Capturing best practices that have succeeded in offering better public services that produce social welfare and political legitimacy, at all levels, is one task for LPP.” BUCCI. Law and Public Policy in Brazil and the United States, cit.
[72] SANTOS, Boaventura Sousa. Epistemologies of the South. Justice Against Epistemicide. London and New York: Routledge, 2016.
[73] This problem is analyzed regarding the issue of equal spending on men’s and women’s intercollegiate sports in CLUNE. Political Model, cit., p. 68-69.
[74] Observation by Clune to papers presented by Brazilian researchers and students in the online seminar/class Law and Public Policy: a South-North Dialogue on May 26, 2022, at the Law School of the University of São Paulo (link). The papers’ abstracts can be found in CLUNE. Law and Public Policy. What it is, cit., Appendix A.
[75] BUCCI, Maria Paula Dallari. Law and Public Policy in Brazil and the United States, cit.
[76] PELLISSERY, MATHEW, GOVINDJEE & NARRAIN (Editors). Transformative Law and Public Policy. London/New York: Taylor & Francis Group, 2020.
[77] MATHEW, PELLISSERY & NARRAIN. Why is Law Central to Public Policy in the Global South? In PELLISSERY et al. Transformative Law and Public Policy, cit., p. 1
[78] PELLISSERY et al. Transformative Law and Public Policy, cit., Preface, p. xi.
[79] Showing some of the authors mentioned by SOUZA & BUCCI, Estado da Arte, cit.
[80] MATHEW et al. Why is Law Central to Public Policy in the Global South? cit., p. 1
[81] “Close examination of the judgments of Supreme Courts in the Global South shows how ‘public interest’ is deliberately built into legalism in those constitutions. Interestingly, in the Global South Where impunity is high, the largest number of court cases are against the state. Therefore, how constitutionalism protects individual liberties against the authority of the state becomes more important in the Global South.” MATHEW et al. Why is Law Central to Public Policy in the Global South? cit., p. 5.
[82] “The title of this blog may seem strange and contradictory. How could there be free enterprise, an active state, and progressivism? I chose the term active state referring to a bipartisan consensus in modern times that the U.S. government has a strong role assuring such outcomes as prosperity, employment, insurance against loss, and human education and development.[8] Any notion of bipartisan agreement on the role of the federal government might seem strange in a time of ferocious conflict over its role. But, as we will see, both political parties support free enterprise as a source of prosperity and jobs as well many aspects of federal law created during progressive eras that prevent disruption of the economy, insure against income loss, and support education. The conflict is real, but it is focused on certain kinds of policies and programs. A key question to be discussed is which parts of the active state and progressivism are stable and secure and which parts are under siege and at risk of retreat or even destruction.” CLUNE. Progressivism in the Active Free Enterprise State, cit.
[83] CLUNE. Political Model, cit.
[84] SANTI ROMANO. L’Ordinamento Giuridico. Firenze: Sansoni, 1962.
[85] Personal email from William Clune to me following a joint class presentation and discussion of these topics.