Negotiation, Meet New Governance: Interests, Skills, and Selves


  • Amy J. Cohen is an assistant professor of law at The Ohio State University Moritz College of Law. She can be reached at For comments, conversation, and generous reading, I wish to thank David Barron, Bob Bordone, James Brudney, Cindy Burack, Tommy Crocker, Ellen Deason, Christopher Honeyman, Garry Jenkins, Genevieve Lakier, Ed Lee, Debby Merritt, Michael Moffitt, Peter Shane, Barry Shank, William Simon, Marc Spindelman, Susan Sturm, Annecoos Wiersema, and especially Janet Halley and Ilana Gershon. I would also like to thank Susan Landrum for research assistance, Dean Nancy Rogers for her support through the Moritz College of Law Summer Research Fund, The Ohio State University Office of International Affairs for a faculty travel grant to Thailand, and Sabrina Gyorvary and the Earthrights Mekong School community for generously engaging me in their work.


In this article, I critically examine two bodies of scholarship: negotiation literature and new governance literature. To that end, I consider The Negotiator's Fieldbook (2006), an ambitious survey of negotiation theory and practice edited by Andrea Kupfer Schneider and Christopher Honeyman, and key works by U.S. new governance architects, Michael Dorf, Charles Sabel, and William Simon. This comparison may surprise readers since negotiation literature largely focuses on interpersonal dynamics, and new governance literature aims at institutional change. I argue that these two literatures share similar assumptions about subjectivity that drive their sense of political hopefulness. In short, both envision a flexible problem-solving subject—shaped in negotiation by a discourse of skills and in new governance by a discourse of institutional design. Based on this descriptive claim, I illustrate how reading these literatures together suggests alternative perspectives from which to consider questions of power, inequality, and distribution relevant to both fields.

When no firm and lasting ties any longer unite men, it is impossible to obtain the cooperation of any great number of them unless you can persuade every man whose help is required that he serves his private interests by voluntarily uniting his efforts to those of all the others.

Alexis de Tocqueville (1969, 517)