New Governance and Soft Law in Health Care Reform

Louise G. Trubek INTRODUCTION Health care reform is underway. To resolve longstanding health care problems, reformers are using new technologies, revising the role of public agencies, expanding the use of information, and creating flexible and participatory tools. These processes are different from previous understandings of health care governance. They are based on an emerging set of practices that can be called “new governance,” “post-regulatory,” or “new proceduralism.” New governance includes devolution, publicprivate partnerships, new types of regulations and incentives, network creation, coordinated data collection and dissemination, benchmarking, monitoring, and active patient participation. One aspect of new governance is a transformation of how we think of law; it includes guidelines and benchmarks that have no formal sanctions.