PUBLIC ACCOUNTABILTY

Vol. 17 No. 2 (February, 2007) pp.129-137

PUBLIC ACCOUNTABILTY: DESIGNS, DILEMMAS, AND EXPERIENCES, by Michael Dowdle (ed.). Cambridge Studies in Law and Society. Cambridge: Cambridge University Press, 2006. 474. Cloth. £55.00/$95.00. ISBN: 0521852145. Paper £24.99/$45.00. ISBN: 0521617618.

Reviewed by Ariel Meyerstein, J.D., Boalt Hall School of Law (University of Calfornia, Berkeley); PhD Candidate, Department of Jurisprudence and Social Policy, University of California, Berkeley. Email: ariel [at] berkeley.edu.

This engaging collection edited by Michael Dowdle tackles the perception that public accountability in modern-day governance is in “crisis,” attacked by the combined forces of globalization and privatization. It handles this task with care, producing theoretically nuanced and empirically rich observations on how notions of public accountability have apparently evolved as the administrative state has adopted a variety of techniques to achieve this illusive but foundational ideal of political society. As many of the contributors ably demonstrate, while new configurations of the neoliberal regulatory era may in fact be deepening democratic deficits, limiting transparency mechanisms, and obstructing traditional checks and balances of public power, the “crisis” in public accountability is far from new.

This observation enhances the imperative to understand how notions of public accountability continue to shift over time, a project to which this volume makes an excellent contribution. While we may be correct in perceiving a crisis in accountability, this does not prevent us from finding accountability through other pathways. Nor does it necessarily imply that it has not always been there and we simply need to reconsider what to look for and how to conceive of it. The collective wisdom of PUBLIC ACCOUNTABILITY argues that, while privatization and globalization may present distinct challenges to public accountability, these transformations nonetheless also present new opportunities for experimentation and reinvigorated notions of accountability for re-defined conceptions of “the public.”

Dowdle has amassed an all-star cast of established and ascendant scholars in the areas of public law and administrative law whose essays approach the topic from a variety of angles. Indeed, one could not imagine a better list of contributors for this topic. This makes reading the collection a pure treat, offering something for every intellectual palette. Contributions range from abstract discussions of political theory and regime design to in-depth empirical studies that re-examine familiar questions of accountability in new public-private formulations, through the lenses of foreign experience, the activities of under-studied actors, or some combination thereof.

Often such diversity will lend collections an inchoate feel, but in this case, the disparate approaches and topics only [*130] complement one another. Contributors are often in explicit conversation with their co-contributors, illustrating one another’s points in constructive ways, while avoiding an overall sense of redundancy. Dowdle’s thoughtful organization of the volume facilitates this effect, as does his comprehensive and insightful introductory chapter, which more than merely summarizing the contributions, strives to link the pieces together and adds its own conceptual historically informed framework for understanding public accountability.

The introduction traces the historical origins and evolutions of notions of public accountability in the Anglo-American context, excavating how various “institutional architectures,” including elections, rationalized bureaucracies, judicial review, transparency, and “markets,” emerged as “exigent responses to various legitimacy crises” in Anglo-American governance (pp.3-4). Though the emergence of these different modalities could have initiated a series of different public accountability paradigms, what instead happened was a coalescing over time of these various logics into a singular understanding of public accountability consisting of an “accretional layering” in which the bureaucratic form has dominated (p.6). Indeed, even with the rise of new discourses and technologies motivated by an anti-administrative impulse (e.g., contracting out, devolution, “streamlined government”), these would come only to substitute one bureaucracy for another, less visible one.

Despite the long-time dominance of the Anglo-American bureaucratic model as a global standard, Dowdle notes that the end of the Cold War caused it to fragment under the pressure of “newer and more localized organizational logics that stress flexibility and decentralization” (p.10). This development – the “retreat of the logic of modernization”(p.10) – ironically quickened the development of public accountability discourse; globalization created new demands for more public accountability by the ever-expanding cast of actors whose activities began to affect people who previously were exclusively touched (or left alone) by the hands of their respective governments. Dowdle ends his thematic overview by noting that our differing vantage points through which we encounter public accountability further fragment the concept. Each of these different perspectives entail different epistemologies of how we understand the concept; as citizens or participants, as architects and designers of its structures, and through experience, which suggests a more dialogic epistemology. Building on the biologist Edward O. Wilson’s notion of “consilience,” Dowdle promotes the diversity of the volume as a particularly promising mode for increasing our understanding of accountability, as he recognizes the potential for new understanding created when “different experiences and epistemologies come in contact and learn from one another” (p.16). This review cannot possibly respond adequately to this eclectic diversity in so little space, but it will endeavor to capture some of the highlights of the contributions. [*131]

Dowdle divides the essays into four sections. The first section, “accountability and the state,” discusses the topic in the arena with which most readers will probably be familiar: the contemporary “crisis” in public accountability emerging from the traditional bureaucratic structuring of state power.

John Braithwaite’s essay explores one of the insufficiencies of bureaucratic power in the criminal justice arena. He points out the need to supplement the punitive measures of contemporary criminal justice systems’ bureaucratic accountability with more restorative mechanisms offered by horizontal accountability, which respond to disruptions in communal life caused by both the initial criminal act and its punishment. Noting that accountability and responsibility are related yet distinct concepts, Braithwaite calls for a shift from the limited “passive responsibility” demanded by traditional criminal jurisprudence, to the more demanding “active responsibility” found in restorative justice. Active responsibility offers both opportunities and new challenges in repairing wrongs by “widening the circle” of responsibility to include not only agents of the state, but also local stakeholders in communities impacted by crime.

Edward Rubin’s chapter explores the origins of the accountability crisis as a function of the historical evolution of the modern regulatory and administrative state coming into tension with an “anti-administrative impulse,” – individual and collective yearning for more intimate, responsive governance (p.76). The problem, Rubin insightfully identifies, is one of scale, and it is inevitable; the needs created in political subjects by industrialized economies and the demands placed on the state lead to a necessarily bureaucratic form of governance, but in the same moment we feel a hostility towards this solution because of the loss of humanity, community and simplicity it entails. Rubin convincingly shows how arguments for securing accountability, both in traditional ways, such as through elections, and in more recent formulations, through devolutions to localities or private parties, all fail to recognize the inescapably administrative nature of accountability. Accordingly, when such arguments indulge this “anti-administrative impulse,” they engage in political escapism grounded in falsely-constructed nostalgia for a political life that never existed.

Jody Freeman takes a bit more optimistic view of the more recent evolutions in accountability, arguing for the “publicization” of the new public-private forms of governance and accountability. She argues that these newer forms, which rely on horizontal networks and invite more consultation and participation (e.g., through the contract negotiation process), may offer distinct advantages over the formal and hierarchical accountability offered by bureaucracies.

The second part of the book addresses questions of institutional design. Jerry Mashaw offers an excellent theoretical discussion providing tools for assessing any accountability regime. Mashaw proposes that the essential questions to [*132] ask of any accountability regime in order to measure its efficacy are: “who is liable or accountable to whom; what they are liable to be called to account for; through what processes accountability is to be assured; by what standards the putatively accountable behavior is to be judged; and, what the potential effects are of finding that those standards have been breached” (p.118). Mashaw then offers a partial taxonomy of accountability regimes in three sectors – public, market, and social – and concludes by applying his conceptual paradigm to assess the efficacy of “contracting-out” in the specific context of social security disability insurance.

Michele Ford’s chapter on labor organizing in Indonesia complicates analyses of accountability that too hastily draw their conclusions based purely on formal distinctions in organizational structures. Ford shows that measuring accountability requires going beyond assessments of formal structure to include multidimensional analyses that recognize particularized environmental pressures affecting an organization’s ability to be responsive to its constituents. Colin Scott’s chapter similarly complicates overly simplistic approaches. Scott explicates the various modalities of accountability in modern governance – hiearchy, competition, control, and, community – and notes that often accountability is achieved through a “heterarchical mixing of these modalities of control” (p.184). Accordingly, we must widen our focus beyond a single governance organization to encompass an entire governance regime in order to view the “hybridity of control” that can emerge in different settings. For example, business people routinely ignoring contractual terms and creating appropriate dispute resolution mechanisms without recourse to law would indicate a “community” model of control rather than the “competition” model one might expect.

The offerings in the third section of Public Accountability focus on the ever-important concerns surrounding the concept of participation. Christine Harrington and Z. Umut Turem’s chapter on neoliberal regulatory regimes takes a more poststructural approach than other chapters. They attempt to understand how modes of accountability have changed, but more importantly, to see the way accountability is currently “mobilized as a powerful political symbol to legitimate a certain type of regulatory regime” (p.201). Focusing on the effects of the Negotiated Rule Making Act (NRA), Harrington and Turem point to the direction in which the neoliberal regulatory apparatus may be taking us: maximizing the participation and transparency for certain nongovernmental actors, while limiting these benefits for the public at large. While these advocates promote “stakeholder” models as fixing some of the problems of traditional bureaucratic regimes, Harrington and Turem argue that they in fact destroy the crucial principal-agent nexus upon which these regimes are built, replacing it with a perhaps unduly celebrated version of “participation.” At the same time, the deference imposed on the judiciary for negotiated rulemaking agreements by the NRA removes any external check that would otherwise be in place under traditional configurations. The authors [*133] close their essay with a warning that, removed from the judicial gaze, the inner dynamics of negotiated rulemaking may ultimately bias “repeat players” over “one shot players.”

In her chapter, Bronwen Morgan brings together many of the strands of other chapters – particularly those presented in Rubin’s, Freeman’s, and Mashall’s discussions – into a comprehensive view of what globalization means for accountability. She argues that, while globalization threatens to exacerbate trends that privilege technocratic forms of accountability, we are nonetheless empowered to embed in these ever-bureaucratizing processes a logic of “convivial accountability” that lend a sense of collective identity and shared purpose to our governance practices.

Morgan argues that most forms of traditional accountability, no matter the institutional setting or configuration, in some way aspire to the “triadic” model of accountability that Martin Shapiro long ago identified as the essential logic of judging (p.247). This “technocratic” kind of accountability has dominated all institutions of governance, from regulatory oversight to transnational adjudication of human rights, and even serves as the logic underlying “more participatory, locally embedded modes of democratic accountability,” such as Braithwaite’s “responsive regulation,” and Dorf’s and Sabel’s “democratic experimentalism” (p.254). Given the triadic model’s expansive range, Morgan claims that the accountability crisis must be viewed in terms of this model’s limitations, rather than as some “conflict between bureaucracy, judicialization or democracy” (p.256).

Even if technocratic forms manage to increase opportunities for deliberation and participation, however, Morgan observes that an elusive element is still lacking: “implicit community” (p.259). “Convivial accountability” serves to supplement this missing piece, as it is more able to create a space for the kind of discussions about competing values that are essential to the formation of community (p.259). In contrast to the triadic logic of technocratic accountability and its preoccupation with “disinterestdness,” and decision-making based on expert knowledge, “convivial accountability” grounds itself in the “tacit nature of the expertise that underpins shared experiences, values, symbols, identities, and understandings,” which enables “multiple implicit communities to co-exist peacefully, and to adjust to conflict incrementally and pragmatically” (p.259). What is gained with convivial accountability, then, is a different style of debate that facilitates the creation of community precisely because it does not follow the logic of routinization and expert knowledge relied upon in technocratic models.

Morgan ends her piece by examining the water struggles in Cochabamba, Bolivia. She observes that globalization is exacerbating trends in which “territorially defined communities” (those formed by geographic affinity and reliance on identity and custom) are displaced with the esoteric knowledge practices of “functional, non-geographically defined communities” (those more reliant on science and other rational-technocratic knowledge) thereby [*134] limiting access and opportunities for involvement in governance. The water struggles in Cochamba present a moment of such displacement, and Morgan construes the social protests they entailed as an attempt to implant convivial accountability into a process dominated by technocratic accountability. She concludes by questioning whether the impulse towards convivial accountability visible in the rise of transnational social movements can ever become responsive to the bureaucratic demands of everyday governance.

The fourth and final section of the volume focuses on the question of what potential accountability regimes can learn from experience. Sasha Courville’s chapter presents a novel understanding of accountability as a process of continuous “learning” – recognition of and responsiveness to accountability issues as they arise. Looking at international private and voluntary market-based certification and accreditation systems, Courville notes that, if they are willing and all members are prepared to participate in the problem-solving activity, such governance configurations can indeed routinize configurations that begin as more spontaneous accountability regimes. Even though such interventions may ultimately be less effective than bureaucratic accountability, these institutions nonetheless maintain legitimacy, not from their functionality, but from participants’ experience of the institutions’ responsiveness to emerging issues. As Dowdle notes in his introduction, Courville’s chapter responds to the theoretical problems raised in other chapters – particularly the question of whether a priori design decisions can capitalize on ex post analysis of institutions. Dowdle responds that Courville seems to suggest this outcome-oriented question is not the one to ask, but rather, the focus should be on the process itself. Accountability can emerge, she explains, from the analytic effort of analyzing problems and attempting to resolve them, which she describes as creating a “culture” that is willing to subject the institution to “continual improvement and periodic revision,” by being inclusive of all stakeholders, responsive to issues, and flexible in the rules and procedures it adopts (p.296). Thus, Courville pleads for thinking about institutional design in terms of cycles, rather than remaining stuck in more static conceptions.

Michael Dorf’s chapter is also useful in helping to reconceive how we think about accountability in a more familiar setting. Dorf tackles a very old problem that legal theorists have wrestled with for generations: the apparent judicial accountability deficit – what Alexander Bickel termed the “counter-majoritarian difficulty” (p.301). Dorf argues against what he characterizes as the “zero-sum picture of courts versus other government actors” as inaccurate, claiming that we must not narrowly conceive of judging as a trade-off between sacrificing self-rule in order “to keep the Leviathan within tolerable limits” (p.302). Instead, Dorf advocates for adopting the broad framework of “democratic experimentalism,” espoused by himself, Charles Sabel, and others. Democratic experimentalism puts forward a model of participatory [*135] administration in which local units of government are “broadly free to set goals and to choose the means to attain them” (p.302). The engagement in “practical deliberation” of individuals acting alone, through stakeholder organizations, and via locally elected officials, enables the discovery of novel solutions to collective problems, which can pacify long-standing political animosity, open the space for new contestation, though it never really permits complete harmony to settle-in.

Drawing on the practical experiences of innovative “problem-solving courts,” Dorf’s essay applies the experimentalist methods that have started to take root in the private sector and in public administration to the work of the federal appellate courts. Cast in this light, the courts would act as “meta-problem solving courts,” doing similar work to comparable institutions reviewing the work of other problem-solving institutions, such as experimentalist administrative agencies. While front-line problem-solving institutions monitor the provision of services, meta-level reviewing courts would “monitor the monitoring,” and, mirroring the problem-solving courts abstention from reviewing the contested choice between one of several alternative solutions, these experimentalist appellate courts would “rarely resolve contested questions of law in the sense of choosing one rather than another meaning of authoritative text” (p.319). This in turn would lessen the accountability deficit in the courts because they would be provided fewer opportunities to impose their own normative views on “ambiguous authoritative texts nominally traceable to the popular will” (p.319), and would also be better prepared to hold primary actors accountable to choices actually made by society.

Dorf tests his theories on two kinds of cases that come before appellate courts: “big cases” (those that tax courts’ “administrative capacities”), and “hard cases” (those that demand judges to negotiate the moral diversity of our society via the medium of ambiguous legal texts) (p.322). Dorf notes that this distinction is often not as clear as we like to think, and concedes that courts practicing experimentalism – returning the job of collectively constructing solutions to shared problem to the actors that are affect by them – may not be suitable for truly hard cases, those that are hard without also being “big.” Pointing to quintessential “big” cases, Dorf emphasizes the social contingency of the volume and ferocity of moral disagreement over “big cases” to observe that the “current intractability of some moral questions is certainly not an indictment of experimentalism,” since polarization over norms often lessens over time. This is evident in the relative acquiescence of the public to the Supreme Court’s decision in GRISWOLD v. CONNECTICUT (which invalidated a ban on contraceptive use), in contrast to the intense protest following its rulings in BROWN v. BOARD OF EDUCATION (declaring school segregation unconstitutional) or ROE v. WADE (protecting a woman’s right to an abortion on privacy grounds).

This leads Dorf to extract two advantages offered by experimentalist [*136] appellate judging over conventional judging. First, in big cases, those that strain judges’ administrative competence and not their moral authority, experimentalism allows for devolution of such coordination to “local learning,” while avoiding traditional hierarchical bureaucratic control (p.327). Similarly, in hard cases, where a court’s decision will fall short of actually changing social practice because of social opposition, experimentalism will “soften the sting for those on the losing end of the initial decision,” by bringing them into dialogue with those on the other side (p.327). At least in pacific political moments, rather than, for example, civil wars, Dorf thinks that this social dialogue can “reveal previously unseen commonalities of interest and even constitute common values” (p.327). In conclusion, Dorf thinks that rather than frame the difficult problems of size and scale as a choice between institutional settings – i.e., problem-solving by a court versus an a legislature or an agency – that the real question is whether the chosen institution “adopts problem-solving methods equal to the challenge” (p.328).

The volume concludes with a chapter by its editor, Michael Dowdle, on how the view of the outsider (here a comparative constitutional law scholar) on the development of accountability mechanisms in a foreign context (China), may be a useful learning strategy. Dowdle suggests that adopting the view of the outsider may develop new analytical methodologies that would help rethink the problem of accountability on more familiar (domestic) soil by overcoming the cognitive limits constraining our understanding of our own constitutional system. In other words, if we turn these new lenses back on ourselves, we might just learn a new way to look at our own system.

Specifically, Dowdle argues that the two-level dynamic of our “regulatory” constitutional model is “a projection of late nineteenth century industrialization.” Embedded in it is a “presumption that the constitutional environment . . . is ‘regularized’ in such a way as to be directly comprehensible to a centralized administrative apparatus” (p.331). According to Dowdle, this very particularized understanding of socio-political organization is “neither universal, nor historically or functionally inevitable” (p.331). We have become trapped in this optic, however, eschewing “non-regularized” structures found in other constitutional spaces (i.e., China) because they seem to fail our definitions of proper constitutional orderings. The problem, then, is in the deductive character of our model; adopting a more inductive approach might help locate emergent constitutionalism in China even in the absence of the trappings of our two-level regulatory system.

In fact, Dowdle identifies such developments in the role played by the National People’s Congress (NPC) as a relevant political actor in China’s political system. Contrasting William Alford’s and Benjamin Liebman’s pessimistic account of the development of clean air legislation in China with his own inductive account, Dowdle shows how Alford’s and Liebman’s [*137] “regulatory” optic fails to capture “possible incidents” of constitutional accountability, i.e., moments in which political actors seem to have altered their behavior to conform to the “stated demands of constitutionalism” (p.353). While Alford and Liebman view the NPC as just another tightly controlled-elite bureaucratic institution, Dowdle perceives a variety of constitutional “behavior” that carries promise for the future.

In this way, Dowdle observes, the NPC, while lacking the traditional elements of “constitutional legitimacy” because of its “significant electoral and democratic infirmities,” acts very much like parliaments elsewhere: it works as a conduit for a variety of public and private constitutional actors to “craft legal-regulatory responses to social problems” (p.357). He suggests that Anglo-American analyses of preliminary constitutional development that obsess over courts might be well-served to refocus their attention on other institutions as well. This observation affirms for Dowdle the benefits of the inductive approach, as it allows us to find accountability where we previously would have been quick to bemoan its absence.

Dowdle’s chapter is a fitting conclusion to the volume. Like many of the other contributions, it reviews traditional understandings of public accountability as we have conceived of them and steps back to show what these trusted understandings are “really about.” It then looks at a new context or development to assess the extent of the veracity of the perception that public accountability in that particular setting is indeed “in crisis” by examining the situation through the conventional paradigm, as well as the new framework forwarded by the author. As in the other essays, this method is extremely fruitful because it visits new problems simultaneously with old and new lenses, opening us to the potential to see just how much things have changed and how much they remain the same, and how this question itself depends on the optic through which we choose to look. In sum, the collective efforts in PUBLIC ACCOUNTABILITY provide an essential resource to old and new students of the perennial questions of how we choose to govern ourselves, and the relative fairness and efficacy of the methods we employ to constrain the institutions of rule we create.

CASE REFERENCES:

BROWN v. BOARD OF EDUCATION, 347 U.S. 483 (1954).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

ROE v. WADE, 410 U.S. 113 (1973).

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