Symposium Introduction: Back to Government? The Pluralistic Deficit in the Decisionmaking Processes and Before the Courts

Given the broad scope of the research and the countless possible examples of an increasingly complex system of governing legal and social phenomena through government and governance, we have tried to prepare a rather simple framework for the analysis. Going “back to the basics,” we have divided the contents into legislation, regulation and administrative law, and judicial adjudication, and we examine these in the United States, in European Union Member States, and in the European Union itself. By so doing, the emergence of new trends in decisionmaking in the three traditional powers has become rather clear. And this seems to be happening regardless of the profound nature of the analyzed polities, including for what is, perhaps, the last, true nation-state (the United States), for “softened” nation-states such as the EU members, as well as for the supranational, nonstate form of government that is the European Union.

Albeit with considerable nuance between the investigated experiences, all systems and all powers, at least in the western legal tradition, show a shift from a traditional separation of powers toward a shared, overlapping, pluralistic, and consequently more complex decisionmaking process.

The first set of articles deals with the pluralistic challenge facing legislation. It is a rather provocative issue considering that legislation is conceived to be the realm of political sovereignty whose pluralism should coincide with the pluralism of the voters. However, in various fields of law, such as those profoundly shaped by scientific achievement, by ethics, and by the role of actors structurally outside the orbit of political legitimacy, such as the so-called civil society, a number of difficulties arise. From different angles, David C. Williams (Indiana University School of Law–Bloomington), Peter Leyland (London Metropolitan University), Cinzia Piciocchi (University of Trento), Susan H. Williams (Indiana University School of Law–Bloomington), and Francesco Bilancia (University of Pescara) tackle some of the numerous facets of a very intriguing issue.
The second set is devoted to regulation and administrative law, a field that has more experience in accommodating pluralism in terms of participatory rights of individuals and groups. However, the structure, and even the very concept of administration, varies quite remarkably between the U.S., the European, and the continental traditions, as emerges from the papers by Alfred C. Aman, Jr. (Indiana University School of Law–Bloomington), Juli Ponce (University of Barcelona), Fabrizio Fracchia (Bocconi University–Milan), and Stijn Smismans (European University Institute).

The third set focuses on pluralism and decisionmaking in the courts. Here, the analysis is mostly concentrated on the issues of standing, with particular regard to the formal rules of access as well as to the problem of standing in particularly delicate and politically sensitive cases. These features emerge in contributions by Christiana Ochoa (Indiana University School of Law–Bloomington), Luisa Antoniolli (University of Trento), Luigi Malferrari (European Court of Justice), and Serena Baldin (University of Trieste).