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Provides the central theoretical and analytical framework of the book. It includes an extensive review of the regulatory literature, which largely casts the European Union as analogous to a ‘regulatory state’ since it engages in widespread social and economic regulation to promote economic integration. Different theories of regulation—interest group, public interest, and public choice—are examined in order to understand current developments in European political economy. Although most accounts of regulation, often cited in the American context, have highlighted the impact of industry influence or ‘regulatory capture’, such a static view of the public–private relationship diverts attention away from other types of organizational relations. Private organizations assuming governmental functions are well known in Europe, whether it is self‐regulation, corporatism, or private interest government. Applying insights from both the European and American literature, this chapter highlights the importance of understanding the origins, practice, and consequences of regulation for broader issues of democratic governance, legitimacy, and accountability.

The social-democratic state existing in advanced democracies is gradually changing into a republican state. The ultra-liberal wave failed because modern societies need a strong, not a weak, state. A republican state is strong enough to protect itself and the public patrimony from private capture. Its strength originates in governments’ political legitimacy, in the active participation of citizens organized in civil society, in a dense public space where social accountability and public debate take place, and on the existence of politicians and civil servants endowed with republican virtues. The republican state that is emerging is fiscally strong because it limits its debts, it is administratively strong because it is engaged in public management reform, and it is politically strong because citizens, politicians, and civil servants know that the principles ruling politics are not the same that rule markets: besides the private, the public interest must be taken into consideration. Undertakes a short survey of the literature on republicanism to substantiate these claims.

In the more developed countries, democracy was liberal in the first part of the twentieth century, social-democratic in the second part, and now is in transition to republican or participative democracy. Liberal democracy followed Schumpeter’s definition and was elitist. Social-democracy may also be called “plural” and “public opinion democracy”, in so far as electors’ general views become politicians’ central concern. Recently democracy is turning republican or participatory, as the public space becomes a reality and an increasing number of citizens seek to influence political decisions through civil society’s organizations either representing group interests or directly promoting the public interest. In the future, we may think in a deliberative democracy, as public debate gains density, political advocacy gains strength, and politicians’ accountability is enhanced. A short survey of the literature on participative democracy substantiates the argument.

This analysis examines the relationship between representative democracy and courts. In particular, it asks to what extent can citizens activate judicial institutions to pursue more diffuse public policy issues and whether this use has grown over time? To assess this change, cross-national variations in three institutional variables: separation of powers, judicially enforceable rights, and rules governing standing to sue state authorities, are examined. The findings reveal increasing levels of public interest litigation around the globe that has led to a creeping judicialization of policy-making.

This chapter addresses one of the crucial tensions facing modern investment arbitration: that between confidentiality and privacy, on the one hand, and transparency and inclusiveness, on the other. It begins by reviewing how investment arbitration frameworks have addressed this tension so far, noting the traditional focus on confidentiality and privacy and the more recent trend towards transparency and inclusiveness of proceedings before ICSID and/or NAFTA tribunals. The chapter then compares domestic public law approaches to questions of transparency and public interest representation. Having reviewed US, English, French, German, and Greek law, it shows that domestic public law seems to accept the principle of transparency and provides for various forms of indirect public interest representation (e.g., through amicus curiae briefs) but also different forms of public interest claims. While this approach cannot be directly transposed to investment arbitration, it clearly can, and arguably should, guide the approach of investment lawyers.

This chapter analyzes the third axis, which describes the challenges to the exclusionary state coming from civil society mobilization. The growing involvement of civil society organizations in authoritative decision‐making is a phenomenon that takes place both within and across countries. The borders of the national state are frequently pierced and mobilization occurs increasingly at the transnational level. Forms of participated governance can be found at all governmental levels as well as across levels. Public interests are promoted by transnational social movements and advocacy coalitions.

This chapter discusses some of the unethical strategies polluters use to mislead citizens about pollution risks. It identifies at least ten special-interest or government behaviors — from advertising and lobbying to white-collar crime and information-suppression — that enable private-interest polluters to subvert the public interest. These strategies allow polluters to “corner the market” in public-health information, fail to disclose risks to citizens, and threaten their health. When relevant risks are not disclosed, citizens are unable to fulfill their rights to know, to give or withhold consent to the risks, and to receive equal protection. To protect their rights, citizens are urged to use the tools of deliberative democracy to educate themselves and others, to help prevent conflicts of interest, and to ensure that government regulators and oversight agencies behave as they should.

This chapter examines the circumstances under which an official will be justified in violating laws that prohibit unauthorized disclosures of classified information. It explains why we cannot rely on the practice of whistleblowing to counter the misuse of state secrecy. It argues that an official may “blow the whistle” if he/she encounters classified information that clearly reveals wrongdoing posing an immediate and serious threat to the public interest, and if he/she makes a good faith effort to minimize the harm that the publication of this information may cause national security. It also asserts that the official must identify himself/herself so that we can assess whether his/her view of what constitutes a wrongful exercise of executive power is a disinterested one. Finally, it shows that would-be whistleblowers have little incentive to disclose their identity, because doing so makes them vulnerable to retaliation from their managers and colleagues.

This chapter explores the impact of public interest law on legal education and, in particular, on clinical legal education. It analyzes two peculiarities of public interest law in relation to a more traditional perspective of the law—its special connection to reality and its connection to material justice—and argues that understanding those peculiarities can help address one of the main problems regarding modern legal education, its keenness to conformity. The chapter includes discussions of the issue of conformity and of public interest law's connection to reality and to material justice. It then analyzes their impact on legal education, drawing on two cases at two law school clinics in Brazil and Poland.

This chapter discusses how the institutional developments at the National Association of Manufacturers (NAM) and the U.S. Chamber of Commerce grew directly from the political and economic upheaval of the late 1960s and early 1970s and paved the way for effective pan-business lobbying in the years ahead. The tumultuous 1960s had altered the landscape of Congress and party politics, particularly through the rise of public interest liberalism and its demands for greater federal intervention with regard to employment equality, consumer and worker protection, and environmental stewardship. In this new political context, business leaders at the NAM and the Chamber refashioned their public image, refined their approaches to lobbying, and broadened their policy prescriptions.

Considering that they were personal and family residences, the degree of subordination of castles to public priorities in England and France during the medieval period is remarkable. Fortresses were not above the law, and more importantly they were not outside it. This chapter examines some sharper consequences of fortresses' dual personality — in what circumstances it was acceptable for them to be seized or even demolished (though still not erased from the map). If being attacked was normally unlikely, interference in the public interest represented by the castellan's superior (senyor, seigneur, or lord) was a contingent liability of the fortress. The chapter looks at some notable instances of urban hostility and class conflict involving ‘private’ castles. Rendability, in all the guises of conditional fortress-tenure, epitomized the public utility of private castles; while conversely the class antagonisms, which have been illustrated in south-west France, focused on fortification and displayed the practical limits of social consensus.

This chapter explores the relationship between politics and scandal throughout American history. Scandals had been part of American politics since the revolution, but they had never so pervasive as in the last three decades of the twentieth century. They had become integral to partisan strategy, political reform, and the public perception of government. The chapter first considers the role of scandal in national politics in the early postwar era, 1945–1964, before discussing the efforts of public interest groups in collaboration with liberal Democrats to put corruption on the national agenda. It then examines the politics of reform between 1972 and 1978, along with the change in political style that gradually encouraged the latent tendency of democratic politics to veer into scandal during the period 1978–1992. It also looks at television coverage of scandals and the impeachment of Bill Clinton and concludes with some reflections on the future of scandal politics.