INTRODUCTION: FRAMING REGULATORY MANAGERIALISM AS AN OBJECT OF STUDY AND STRATEGIC DISPLACEMENT

The regulatory state’s entanglement with managerial governance is undertheorized and poorly understood, with consequences that are increasingly dire. A quarter century ago, scholars of administrative law and regulatory theory identified a new approach to regulation that they called the “new governance.” Drawing from a parallel vein of recent scholarship in public administration, these scholars identified as key characteristics of the new governance its preference for relatively informal modes of policymaking and enforcement—for example, guidances rather than rulemakings and negotiation rather than litigation—and its emphasis on devolution of regulatory authority to private-sector partners and delegates.1 Some celebrated the new governance, characterizing it as flexible, nimble, responsive to stakeholder priorities, and well suited to a fast-changing, complex economy.2 Others, more skeptical, characterized the turn to informality and privatization as an abdication of public responsibility.3 Neither adherents nor critics of the new governance, however, have focused on regulatory managerialism as a distinct mode of governance in its own right. Key characteristics of regulatory managerialism include not only its preferences for procedural informality and privatization but also its distinctive techniques and their underlying logics. The result has been an incomplete account of the managerial turn—an account that overlooks many of managerialism’s signature practical and ideological components and that, consequently, understates the shift in governmentality that managerialism represents. The entrenchment of regulatory managerialism, moreover, has coincided with an era in which information and information technologies have become both principal inputs to and outputs of economic production and principal mechanisms for control and oversight of economic production.4 This is no accident; informational modes of production and control and managerial modes of governance have strong affinities.5 But the ascendancy of informational modes of production and control also raises the stakes. Legal and regulatory tools developed to address the harms of an industrial society—the very same tools that regulatory managerialism supplants—are ill equipped to address the harms of an informational society. Therefore, simply unwinding the changes and reverting to legacy regulatory models is not a realistic option.6 Regulators shackled by the assumptions of managerial regulatory models ha