centralized systems, and government control13—have increasingly been
supplanted or supplemented by more diverse governance systems in many
arenas.14 The resulting variations, often referred to as “New Governance”
models, seek greater participation from non-governmental actors to render
governance more adaptive, participatory, and flexible.15 Further challenging
traditional governance models, some legal and policy researchers articulate
devolved governance models—non-hierarchical, multi-participant endeavors
that operate through multiple, uncoordinated nodes16 that nevertheless
comprise a complex, adaptive system.17 These models of governance are not
exclusive; rather they are inextricably linked and operate simultaneously and
concurrently.18 The concept of complementarity builds on these New
Governance and devolved governance models to articulate an expansive and
flexible view of governance across overlapping or duplicative infrastructure.
A related discussion over the challenges of regulation in a federalist
system highlights the ambiguities and inconsistencies that exist between
federal and state regulatory powers.19 Much of this literature has focused on
Scholarship, 41 AKRON L. REV. 1, 44–64 (2008).
13. Christopher K. Leman, Direct Government, in THE TOOLS OF GOVERNMEN T: A GUIDE
TO THE NEW GOVERNANCE 48, 49–53 (Lester M. Salamon ed., 2002). However, some scholars
have suggested less hierarchical, more adaptive approaches within the rubric of traditional
government actors. See Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic
Experimentalism, 98 COLUM. L. REV. 267, 314–23 (1998) (developing a theory of democratic
experimentalism based on decentralization of government and the development of information
pooling, public/private coordination, and mutual learning).
14. See, e.g., Nan D. Hunter, “Public-Private” Health Law: Multiple Directions in Public
Health, 10 J. HEALTH CARE L. & POL’Y 89, 91 (2007) (describing changes in public health
governance); David M. Trubek & Louise G. Trubek, New Governance & Legal Regulation:
Complementarity, Rivalry, and Transformation, 13 COLUM. J. EUR. L. 539, 544–48 (2006)
(outlining new governance approaches in the EU).
15. See Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance
in Contemporary Legal Thought, 89 MINN. L. REV. 342, 344 (2004) (describing and analyzing
New Governance approaches in the United States); Lester M. Salamon, The New Governance
and the Tools of Public Action: An Introduction, in THE TOOLS OF GOVERNMENT: A GUIDE TO
THE NEW GOVERNANCE 1, 1–14 (Lester M. Salamon ed., 2002) (defining the New Governance
16. Scott Burris et al., Nodal Governance, 30 AUSTRIAN J. LEGAL PHIL. 30 (2005); see
also Gunther Teubner, Introduction to Autopoietic Law, in AUTOPOIETIC LAW: A NEW
APPROACH TO LAW AND SOCIETY 1, 1 (Gunther Teubner ed., 1987) (describing a model of
reflexive law that accounts for other social institutions); David P. Fidler, A Theory of Open-Source Anarchy, 15 IND. J. GLOBAL LEGAL STUD. 259, 282 (2008).
17. R. Chad Swanson et al., Rethinking Health Systems Strengthening: Key Systems
Thinking Tools and Strategies for Transformational Change, 27 HEALTH POL’Y & PLAN. 54
18. Lance A. Gable, Evading Emergency: Strengthening Emergency Responses Through
Integrated Pluralistic Governance, 91 OR. L. REV. 375 (2012).
19. See, e.g., Robert B. Ahdieh, Dialectical Regulation, 38 CONN. L. REV. 863 (2006);
William W. Buzbee, Recognizing the Regulatory Commons: A Theory of Regulatory Gaps, 89
IOWA L. REV. 1 (2003); Heather K. Gerken, Our Federalism(s), 53 WM. & MARY L. REV. 1549,