Sandra Day O'Connor College of Law

In climate change as in other areas, recent years have produced a "Cambrian explosion" of transnational institutions, standards, financing arrangements and programs. As a result, climate governance has become complex, fragmented and decentralized, operating without central coordination. Most studies of climate governance focus on inter-state institutions. This paper, in contrast, maps a different realm of climate change governance: the diverse array of transnational schemes. The paper analyzes this emerging system in terms of two theoretical frameworks developed to describe, explain and evaluate complex governance arrangements --regime complex theory and polycentric governance theory --revealing fruitful avenues for positive and normative research. The paper concludes by arguing that the benefits of institutional complexity could be increased, and the costs reduced, through non-hierarchical "orchestration" of climate change governance, in which international organizations or other appropriate authorities support and steer transnational schemes that further global public interests. a Thanks for valuable suggestions to Jessica F. Green and two anonymous reviewers.

ABSTRACT Available at: http://ssrn.com/abstract=1966730. Negotiators preparing for the 2012 UN Conference on Sustainable Development (Rio 20) are missing an important opportunity. Reforming the institutional framework for sustainable development is a central part of the Rio 20 agenda. In the run-up to Rio 20, negotiators have extensively discussed institutional reforms, but have focused almost exclusively on inter-governmental organizations such as UNEP and the Commission for Sustainable Development. At the same time, however, private sustainability governance (PSG) is flourishing. Since 1992, numerous organizations created by business, civil society groups, multi-stakeholder coalitions and other private actors, as well as diverse public-private partnerships, have adopted important regulatory standards and implemented significant operational programs, including financing and project support. Rio 20 negotiators remain almost wholly disengaged from these innovations.This public-private engagement gap is both puzzling and troubling. PSG has arisen primarily in response to the inadequacies of inter-state governance; it has provided momentum on many environment and development issues while inter-state negotiations have stalled. Embracing PSG would bring this valuable engine of activity into the international system. Indeed, public engagement would be even more beneficial than this 'comparative statics' analysis suggests: supportive engagement would enhance the ability of PSG – and thus of the system as a whole – to address the daunting challenges of sustainability.This paper first contrasts the inter-state focus of Rio 20 preparations (Section 1) with the growth of PSG (Section 2). Section 3 examines the public-private engagement gap in practice and in scholarship. Section 4 considers why states and international organizations (IGOs) have been loath to engage more actively with PSG. Section 5 identifies six broad benefits of public engagement: helping IGOs to carry out their sustainability missions; improving the distribution of PSG schemes; maintaining the incentives that support PSG; managing fragmentation; promoting experimentation; and enhancing participation and democracy. Finally, section 6 outlines workable mechanisms to strengthen public engagement, under the headings of orchestration and regulatory cooperation. These techniques can move the international system towards truly global sustainability governance.

... of dispute resolution; peacekeeping; sanctions and military force; impartial humanitarian assistance; and ... Finally, IOs strengthen issue linkages by situating them within common organizational structures ... alternative: to create procedures for the elaboration of norms within an ...

Standards' are central mechanisms of international governance, but have different roles in various circ1JIllStances. These can be analyzea in terms of a simple typology. One ke)' distinction is analytic: contrasting the Prisoners' Dilemma structure of traditional Pigovian externalities with the Coordination structure of network externalities. The second distinction is substantive: contrasting physical or technol<.>gical externalities with externalities that arise in the creation of public policy. The four resulting circumstances are typically addressed by alternative governance arrangements: varying combinations of private and public governance -according to die respective mterests and competencies of the two spneres -and v¥Y.ing levels of gQvernance -national, r~onal or global -. according to the scope of ilieproblem and the capacity of institutions. Our analysis of these choices is primarily po~itive, but the comparative institutional framework we develop is equally useful for addressing the associated normative question -h()w should international standards be set?

We live in reference to past experience and not to future events, however inevitable." -H. G. Wells 1 N anotechnology is the latest in a growing list of emerging technologies that includes nuclear technologies, genetics, reproductive biology, biotechnology, information technology, robotics, communication technologies, surveillance technologies, synthetic biology, and neuroscience. As was the case for many of the technologies that came before, a key question facing nanotechnology is what type of regulatory oversight is appropriate for this emerging technology. As two of us wrote several years ago, the question facing nanotechnology is not whether it will be regulated, but when and how. Yet, appropriate regulation of nanotechnology will be challenging. The term "nanotechnology" incorporates a broad, diverse range of materials, technologies, and products, with an even greater spectrum of potential risks and benefits. This technology slashes across the jurisdiction of many existing regulatory statutes and regulatory agencies, and does so across the globe. Nanotechnology is developing at an enormously rapid rate, perhaps surpassing the capability of any potential regulatory framework to keep pace. Finally, the risks of nanotechnology remain largely unknown, both because of the multitude of variations in the technology and because of the limited applicability of traditional toxicological approaches such as structure-activity relationship (SAR) to nanotechnology products. In the face of these challenges, legislators, regulators, industry officials, non-governmental organizations (NGOs), and academics are all struggling to find a workable regulatory path for oversight of nanotechnology. In crafting such a strategy, there is much we can learn from previous attempts to regulate other emerging technologies. While there are no doubt numerous possible lessons that can be drawn from the history of

Risk management of nanotechnology is challenged by the enormous uncertainties about the risks, benefits, properties, and future direction of nanotechnology applications. Because of these uncertainties, traditional risk management principles such as acceptable risk, cost-benefit analysis, and feasibility are unworkable, as is the newest risk management principle, the precautionary principle. Yet, simply waiting for these uncertainties to be resolved before undertaking risk management efforts would not be prudent, in part because of the growing public concerns about nanotechnology driven by risk perception heuristics such as affect and availability. A more reflexive, incremental, and cooperative risk management approach is required, which not only will help manage emerging risks from nanotechnology applications, but will also create a new risk management model for managing future emerging technologies.

ABSTRACT Responsive Regulation (RR) introduced important new ways of thinking about regulation. But RR was designed for domestic settings in which a single agency had clear jurisdiction, full regulatory capacity, and extensive information, and could (contingently) deploy stringent sanctions against well-defined targets. Under globalization, many regulatory problems have shifted to the transnational arena, characterized by multiple regulators, public and private, with limited capacities, authority, and information, and modest sanctioning ability; globalized production also renders the targets of regulation diffuse and difficult to identify. RR holds important lessons for transnational regulation, but it must be adapted to these challenging conditions. Some components of transnational RR are already emerging, including numerous private and public–private schemes that regulate business through voluntary norms: “transnational regulatory standard-setting” (TRSS). Alone, however, TRSS schemes face serious limitations. Intergovernmental organizations (IGOs) are best positioned to “take RR transnational” by supporting and working with the nascent TRSS system. Two regulatory strategies are particularly promising: collaboration and orchestration. In “regulatory collaboration,” IGOs promote business self-regulation, much as in RR; they can escalate in response to defection by deploying reputational and market sanctions. In “orchestration,” IGOs support and steer intermediaries, including TRSS schemes and NGOs, which use their material and ideational capacities to regulate target behavior. Orchestration cumulates regulatory competencies, creates avenues of escalation, and provides many benefits of RR “tripartism.”

It is often argued that immediate government action regarding nanotechnology is needed to ensure that public opinion does not mistakenly view nanotechnology as dangerous, to restore public trust in government, and to increase the legitimacy of government action through increased public participation. This article questions whether governments can achieve these goals. As the world lurches toward regulation of nanotechnology, we should ask Why the rush? Can anticipatory action, perceived as the government doing something, fulfill the competing hopes to "restore trust," "pave the way" for nanotechnology, "increase awareness," and "satisfy democratic notions of accountability"? Or is government action more likely to increase existing divisions over nanotechnology's future?