From Judicial Regulation to Judicial Governance: Locating the Courts on the Map of Social Ordering

Abstract

ABSTRACT Courts have long been recognized as venues of social control and policymaking. The rise of regulatory capitalism suggests reconsidering the judiciary in regulatory terms, notably through work that casts courts as regulators. This article argues, however, that styling courts as regulators is both analytically and normatively deficient: it obscures the distinctive function of courts and their contribution to social ordering. At the same time, judicial decision‐making plainly exhibits a regulatory dimension. Yet rather than stretching the concept of regulation, this article proposes to capture this dimension through governance theory. On this theoretical foundation, the article outlines a model of judicial governance that elucidates how social ordering emerges from adjudication and how it unfolds over time. In particular, the model highlights the implications of judicial decision‐making for private ordering and draws attention to processes of intermediation through lawyers, media, and advanced digital technologies. It thus opens a set of analytically structured research questions and complements them with a methodological framework to orient future work on judicial governance.