Over the last several years, the environmental regulatory system has undergone radical changes. Various private normative schemes, ranging from corporate codes to environmental management systems, environmental reporting standards, project-finance codes and green indexes, have assumed an increasingly important role in the regulatory arena. The emergence of private environmental governance as an important transnational phenomenon raises two interrelated puzzles: efficacy and legitimacy. Underlying the efficacy puzzle is a deep-seated suspicion toward "soft" legal instruments, which to some observers represent nothing but a (...) coordinated form of "greenwash." The legitimacy question reflects a contrary concern — that these private regulatory structures represent new forms of global authority that are in need of distinctive legitimization. The Article begins with an outline of this new global terrain, exploring its historical evolution. It argues that the multiple links and cross-sensitivities between the different global private regimes have created a novel ensemble regulatory structure with positive enforcement and normative externalities. The Article then moves to examine the question of efficacy more generally, developing a nuanced understanding of the social dynamic of "soft-law" regulation, which rejects the binary logic underlying the "soft law"-"greenwash" narratives. Regarding the political dimension, the Article argues that this new ensemble network has brought about a new transnational political sphere which is associated with an extensive, cross-institutional quest for legitimacy. The Article then turns its focus to the field of sustainability indexes, focusing on the two leading global indexes: FTSE4Good Index Series and Dow Jones Sustainability Indexes. These indexes are taken as a prototypical case of transnational private ordering. Drawing on a close analysis of the indexes’ guiding documents and on interviews with senior executives from both organizations, the Article considers the unique features of these indexes as forms of governance and the paths through which they claim to affect society. It then moves to explore the mechanisms of legitimacy employed by FTSE4Good and DJSI, highlighting their distinctive visions of legitimization. A close examination of sustainability indexes generates insights, I will argue, regarding the field of private global environmental governance as a whole. In particular, it highlights both the new political opportunities created by the evolving network of transnational governance and the limits this new structure sets for radical critique. (shrink)

One of the most difficult challenges of mature legal systems is the need to balance the conflicting demands of stability and flexibility. The demand for flexibility is at odds with the principle of impartiality, which is considered a cornerstone of the rule of law. In the present article, I explore the way in which the law copes with this dilemma by developing the idea of tolerance of incoherence. I argue that tolerance of incoherence emerges from the interplay between the inferential (...) and lexical-semantic rules that determine the meaning of legal speech acts. I base this argument on an inferential model of speech acts, which I develop through a discussion of graded speech acts, and on the idea that the use of speech acts is governed by multiple and potentially conflicting conventions. I show how this tolerance allows the law to resolve the tension between dynamism and traditionality, and discuss its sociological and moral implications. (shrink)