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The Private Role in Public Governance
Abstract
This article proposes a conception of governance as a set of negotiated relationships between public and private actors. In this conception, public and private actors negotiate over policymaking, implementation and enforcement. The conception evokes an image of decisionmaking in which there is no center of control, such as the agency. This alternative conception challenges the public/private distinction in administrative law, and invites a reconsideration of the traditional administrative law pre-occupation with the accountability of "public" actors. It recognizes the pervasive and varied roles played by private actors in every aspect of governance. The article offers theoretical support for the new conception, drawing on both public choice theory and critical legal studies to argue that there is no purely private realm and no purely public one. There are only negotiated relationships between public and private actors. The argument then proceeds through a series of empirical examples that demonstrate the roles played by private actors in a variety of administrative contexts, including health care delivery and prison management as well as regulatory standard-setting, implementation and enforcement. This inquiry forces administrative law to reckon with private power, but calls into question the field's almost uniform defensiveness toward private actors. Private actors do not merely exacerbate the legitimacy crisis in administrative law; they may also be regulatory resources, capable of producing accountability. From the perspective of the new conception, public and private actors together produce accountability, through a combination of traditional and non-traditional mechanisms. This notion of "aggregate" accountability produced through horizontal negotiation is offered as a contrast to the formal, hierarchical approach to accountability that dominates the field. The article concludes with a new administrative law agenda, which places public/private interdependence at the heart of the inquiry.
... On one hand, as formal politics of states and multilateral institutions continue to play central roles in ocean governance [19], the legitimacy of self-regulatory initiatives, standards, or norms may need recourse to administrative laws since the formulation of private instruments, to some extent, is lacking in the democratic process observed in the state-made legislation [20]. Thus, inviting administrative law to reckon with private power will contribute to the governance of the non-state actors [21]. On the other hand, as has already been pointed out in the fisheries governance, interactions between the private instruments and laws should not be overlooked [22]. ...
... Meanwhile, the principle of public participation is listed as one of the key principles of the coastal border security management. 21 ...
... 20 Article 23 of the Regulations on the Management of Pelagic Fisheries. 21 For example, Article 3 of the Fujian Coastal Border Security Management ...
... To improve regulatory efficacy and effectiveness, many governments, including the UK, US, Germany, and France, have altered their power structures for regulation, allowing private entities, such as market professionals and/or professional organizations, to participate in government regulation. Private participation in government regulation represents administrative authorization as well as authorization and delegation of public authority and is regarded as cooperative regulation or public-private cooperative regulation (Freeman, 2000a(Freeman, , 2000b, hereafter referred to as co-regulation. Under co-regulation, government agencies and participating private entities together shoulder the responsibilities of rulemaking and enforcement, imposing penalties on regulatory violations (Freeman, 2000a(Freeman, , 2000bSaurwein, 2011). 1 Compared with traditional regulation, co-regulation brings professional expertise, flexibility, and practical relevance in regulatory decision-making, while still maintaining governmental coercive power to enforce formally enacted institutional rules and regulations (Hirsch, 2010;Saurwein, 2011). ...
... Private participation in government regulation represents administrative authorization as well as authorization and delegation of public authority and is regarded as cooperative regulation or public-private cooperative regulation (Freeman, 2000a(Freeman, , 2000b, hereafter referred to as co-regulation. Under co-regulation, government agencies and participating private entities together shoulder the responsibilities of rulemaking and enforcement, imposing penalties on regulatory violations (Freeman, 2000a(Freeman, , 2000bSaurwein, 2011). 1 Compared with traditional regulation, co-regulation brings professional expertise, flexibility, and practical relevance in regulatory decision-making, while still maintaining governmental coercive power to enforce formally enacted institutional rules and regulations (Hirsch, 2010;Saurwein, 2011). However, co-regulation also brings about agency conflicts in the decision-making process, which may even lead to regulatory failure (Freeman, 2000a(Freeman, , 2000bSaurwein, 2011). ...
... Under co-regulation, government agencies and participating private entities together shoulder the responsibilities of rulemaking and enforcement, imposing penalties on regulatory violations (Freeman, 2000a(Freeman, , 2000bSaurwein, 2011). 1 Compared with traditional regulation, co-regulation brings professional expertise, flexibility, and practical relevance in regulatory decision-making, while still maintaining governmental coercive power to enforce formally enacted institutional rules and regulations (Hirsch, 2010;Saurwein, 2011). However, co-regulation also brings about agency conflicts in the decision-making process, which may even lead to regulatory failure (Freeman, 2000a(Freeman, , 2000bSaurwein, 2011). Private entities participating in co-regulation may seek their own interests and help their connected parties obtain extra resources or avoid being duly regulated. ...
We examine agency conflicts in co-regulation using the unique data on audit firms with partners serving on the Stock Issuance Examination and Verification Committee (SIEVC), referred to here as SIEVC-connected audit firms, in China. We find that audit firms' SIEVC connection helps enhance the likelihood of their client companies passing SIEVC's IPO screening. We further demonstrate that to trade off opportunistic gains against reputational and legal costs, SIEVC-connected audit firms tend to work with those IPO applicant companies with overall quality no worse than others. Finally, we show that to seek the greatest possible opportunistic gains and reduce reputational and legal costs, SIEVC-connected audit firms strategically choose to work with the IPO applicant companies with good observable quality and poor unobservable quality. Our findings imply that due to agency conflicts, private entities participating in co-regulation tend to seek their own benefits by helping their connected parties obtain resources. In addition, IPO applicant screening on unobservable quality aggravate agency conflicts and induce more opportunistic behavior on the part of private parties participating in co-regulation. While such opportunistic behavior weakens the fairness of resource allocation, it does not reduce the efficiency of resource allocation.
... Access to such information depends almost entirely on private ordering and is reached through voluntary sustainability and ESG reports produced under frameworks developed by private standard-setting organisations [14] . Government standard-setting, regulation and enforcement is thus complemented, substituted for, or intersected by private governance, self-regulation, and voluntary regulation regimes [14,25,26] . Research has widely addressed the increasingly contentious subject of ESG disclosure reform as the demand from regulatory institutions as well as financial agents for more information on emerging ESG risks has been on the rise [14,19] , fuelled by the growing awareness of their financial materiality [27,28] and the increasingly vocal governmental and societal mandates for social and environmental responsibility. ...
... These issues cannot be tackled within a vision of digital governance that draws a strict line between commercial and public values and practices [12] . With the emerging field of ESG, it becomes evident that the sphere of public administration and regulation transcends the traditional court-agencylegislator relationship and that governance is heavily dependent upon private participation [26] . The prospect of novel ESG disclosure mandates and regulatory frameworks raises several concerns both for regulatory bodies and firms [30] , which are heightened due to the nature of ESG information. ...
... Work instructions are instrumental to ensure that the employees are guided while carrying out their duties thus countering errors that may arise and hinder the provision of service (Ferrell & Fraedrich, 2016). Work instructions also ensure there is consistency in the provision of service through uniform and guided processes and duties performed (Freeman, 2000). They further aid in identifying mistakes, possible risks and facilitate compliance to rules and regulations that would influence the delivery of service (Freeman, 2000). ...
... Work instructions also ensure there is consistency in the provision of service through uniform and guided processes and duties performed (Freeman, 2000). They further aid in identifying mistakes, possible risks and facilitate compliance to rules and regulations that would influence the delivery of service (Freeman, 2000). Work instructions are roadmaps that help an institution achieve the -159 -| P a g e : Reviewed Journal International of Business Management. ...
Government and private institutions all over the world greatly recognize the crucial role of service delivery in attaining a competitive and dynamic market. State-owned enterprises in the Energy sector are a major foundation upon which the economic, social and political development strategies are built on in order to actualize the vision 2030 as well as the big four agenda. They enjoy monopoly in provision of services to the public. However, despite reforms on public sector bureaucracy, the public still face many hurdles in accessing government service, the level of public dissatisfaction on service delivery is high and open government bureaucracy hasn’t led to quality and sustainable service delivery. In addition, politicization of appointments of Board of Directors translating to insufficient competence and legal frameworks which subtly are inclined to privilege a few at the expense of the entire public, have tainted government image. This paper particularly established the influence of policy compliance on service delivery in State-owned enterprises. The target population was 124 suppliers, 5,107 end-user consumers, 1,817 employees in KPLC plus 480 employees in REREC and 30 employees in the Energy regulator (EPRA). A sample of 380 individuals/households was selected using a two-stage random sampling procedure comprising of proportionate stratified and simple random sampling techniques. Empirical data for this thesis were gathered using semi-structured questionnaire. The validity and reliability of the data collection tool was assessed to confirm the suitability of the tool for use in the study. Descriptive analysis, diagnostic test for multiple linear regressions and inferential analysis were conducted on the data set that had been gathered from the field. The findings demonstrated that policy compliance positively affected delivery of services. Management of state owned enterprises should enact policies to reinforce practices on aspects of leadership power, leadership motivation and leadership delegation. The human resource divisions of state owned enterprises ought to enact policy the buttress mutual trust, team spirit, sharing of information, openness, and sense of belonging. In addition, sufficient resources should be availed for strengthening information and communication infrastructure as one of the critical support system for enhancing the processes of value creation and delivery.
... Public managers may instrumentally use rulemaking, judgment, agreements, and contracts to pursue public ends efficiently and effectively (DeLeon & Denhardt, 2000). This innovation requires abandoning the "public administration orthodoxy" (Rosenbloom, 1993) that "constrains the private role in public governance" (Freeman, 2000(Freeman, , p. 1289 due to the "overly legalistic conception of public law" (Christensen et al., 2017, p. i132) that underestimates the social impact of an active engagement of the private sector. By embracing an institutional logic that "facilitate(s) and direct(s)" (Freeman, 2000(Freeman, , p. 1289, civil society, businesses, and not-for-profit organizations may enlighten what contribution the private sector may provide in the pursuit of the public good. ...
... This innovation requires abandoning the "public administration orthodoxy" (Rosenbloom, 1993) that "constrains the private role in public governance" (Freeman, 2000(Freeman, , p. 1289 due to the "overly legalistic conception of public law" (Christensen et al., 2017, p. i132) that underestimates the social impact of an active engagement of the private sector. By embracing an institutional logic that "facilitate(s) and direct(s)" (Freeman, 2000(Freeman, , p. 1289, civil society, businesses, and not-for-profit organizations may enlighten what contribution the private sector may provide in the pursuit of the public good. ...
This chapter will show how DPM may provide the actors in a public value-driven performance regime with the methodological framework to implement policy learning for assessing community outcomes, illustrated by different examples. Before presenting the empirical work, the following sections will discuss the main methodological challenges associated with outcome-based performance assessment to set the field for showing how DPM may implement policy learning in public value-driven performance regimes.
... Public managers may instrumentally use rulemaking, judgment, agreements, and contracts to pursue public ends efficiently and effectively (DeLeon & Denhardt, 2000). This innovation requires abandoning the "public administration orthodoxy" (Rosenbloom, 1993) that "constrains the private role in public governance" (Freeman, 2000(Freeman, , p. 1289 due to the "overly legalistic conception of public law" (Christensen et al., 2017, p. i132) that underestimates the social impact of an active engagement of the private sector. By embracing an institutional logic that "facilitate(s) and direct(s)" (Freeman, 2000(Freeman, , p. 1289, civil society, businesses, and not-for-profit organizations may enlighten what contribution the private sector may provide in the pursuit of the public good. ...
... This innovation requires abandoning the "public administration orthodoxy" (Rosenbloom, 1993) that "constrains the private role in public governance" (Freeman, 2000(Freeman, , p. 1289 due to the "overly legalistic conception of public law" (Christensen et al., 2017, p. i132) that underestimates the social impact of an active engagement of the private sector. By embracing an institutional logic that "facilitate(s) and direct(s)" (Freeman, 2000(Freeman, , p. 1289, civil society, businesses, and not-for-profit organizations may enlighten what contribution the private sector may provide in the pursuit of the public good. ...
... For smooth implementation, Government involvement may be necessary, but care should be exercised in ensuring that politics does not take center stage as an agenda thus disrupting the project (Freeman, 2014). Project managers should be equipped with the necessary skills and training to carry out their role and responsibilities. ...
... Respondents when asked an open-ended question that aimed at giving them an opportunity to explain their responses and bring in their ideas, a number of arguments were arrived at: for example, over 95% of the respondents argued that, Management support has an effect on project implementation, 79% argued that, Employee competence has an effect on project implementation, 83% said that, the beneficiary organization structure and design has an effect on project implementation etc. According to Freeman (2014), institutional arrangements have an important bearing on the successful implementation of projects; in project planning and implementation, most organizations adopt different approaches towards monitoring and evaluation. For project planning and design, implementation, monitoring and evaluation, it is necessary that an institution make structural changes towards ensuring that s simple hierarchy of management is adopted to ensure smooth decision making, efficiency and problem solving. ...
Participatory monitoring and evaluation have conveyed knowledge thus effectively introducing new ways for strengthening learning at the project and institutional level. PME is instrumental in different capacities such as project planning and management, strengthening an organization's internal functions and performance thus enabling sustainability, analysis of stakeholder interests and understanding to develop a broad consensus on envisaged initiatives, and the joint assessment of project outcomes and impacts. In the same spirit, this study topic was identified, and its main purpose was to determine the effect of participatory based monitoring and evaluation approach on the implementation of projects; the case of Trademark East Africa development projects. The aim of the study included:-to ascertain the influence of collaborative decision-making and problem-solving on project implementation at TMEA, to determine the influence of beneficiary ownership & participation on project implementation at TMEA, to determine the influence of transparency and accountability structures on project implementation at TMEA and, to determine the influence of institutional factors on project implementation at TMEA. The study used a descriptive survey design targeting all the 107 individuals who included 7 Project managers 15 Project coordinators, 5 Beneficiaries (Indirect Employees), 30 Project implementation and coordination team members and 50 other Stakeholders from KPA and other agencies based in Mombasa. This study used the Krejcie & Morgan sample table of 1970 to sample 86 respondents for the study. Data was collected using a semi-structured questionnaire that had both closed and open-ended questions. Qualitative data was analyzed using descriptions and elaborative explanations while, the quantitative data obtained were analyzed through inferential and descriptive statistics and presented through frequency tables, percentages and means. Results indicated that: a majority of the respondents (45) supported the idea that collaborative decision-making and problem-solving has an influence on projects implementation; 55 respondents who represented 84.6% supported the idea that beneficiary ownership and participation have an influence on project implementation, 60 respondents supported the idea that transparency and accountability structures have an influence on projects implementation. Finally, the majority of the respondents (mean of 4.5) agreed that institutional factors have an influence on projects implementation at Trademark East Africa. The study suggested future studies as follows: similar studies can be done in other bureau and by extension in the whole country with a specific focus on the direct beneficiaries; research can be redone again (This is because the time spent in this study was not enough to cover all the massive information available in the organisation), and a study can be done to investigate the determinants of sustainability of projects implemented by TradeMark Company limited. Keywords: projects implementation, collaborative decision-making and problem-solving, beneficiary ownership and participation, transparency and accountability, and institutional factors.
... As it relates to public contracting, scholars have long argued that private provision raises the possibility that democratic values are ignored (Domberger and Jensen, 1997;Brown, Potoski and Van Slyke, 2006), with early studies showing that programme recipients in contracted out welfare services 'enjoy fewer due process protections' with worsening accountability (Bezdek, 2000;Diller, 2001;Christensen, Goerdel and Nicholson-Crotty, 2011). Still, there are those who suggest that an overly legalistic view inherently undervalues privatisation because it seeks to constrain 'the private role in public governance' rather than working to 'facilitate and direct it' (Freeman, 2000;Christensen, Goerdel and Nicholson-Crotty, 2011). ...
Governments all over the world have transitioned away from directly providing public services to contracting and collaborating with cross-sectoral networks to deliver services on their behalf. Governments have thus pursued an array of policy instruments to improve interorganizational progress towards policy goals. In recent years, outcomes-based contracting has emerged as a compelling solution to service quality shortcomings and collective action challenges. Informed by public policy, public administration, and public procurement scholarship, this Element details the evolution of social outcomes in public contracting, exploring the relationship between how outcomes are specified and managed and how well such instruments deliver against policy goals. It comments on the possible drawbacks of contracting for social outcomes, highlighting how governments may use outcomes as an excuse to avoid actively managing contracts or to sidestep their accountability as outlined in public law.
... The motive for doing so is mixed: preventing state regulations, promoting public image, making their products more profitable, etc. But one common concern underlying these different types of motives is legitimacy ([1], 104) -the concern of how platforms' exercise of power could be justified and recognized ( [104], 387; [21], 68; [43], 666). ...
One trending application of LLM (large language model) is to use it for content moderation in online platforms. Most current studies on this application have focused on the metric of accuracy - the extent to which LLM makes correct decisions about content. This article argues that accuracy is insufficient and misleading, because it fails to grasp the distinction between easy cases and hard cases as well as the inevitable trade-offs in achieving higher accuracy. Closer examination reveals that content moderation is a constitutive part of platform governance, the key of which is to gain and enhance legitimacy. Instead of making moderation decisions correct, the chief goal of LLM is to make them legitimate. In this regard, this article proposes a paradigm shift from the single benchmark of accuracy towards a legitimacy-based framework of evaluating the performance of LLM moderators. The framework suggests that for easy cases, the key is to ensure accuracy, speed and transparency, while for hard cases, what matters is reasoned justification and user participation. Examined under this framework, LLM's real potential in moderation is not accuracy improvement. Rather, LLM can better contribute in four other aspects: to conduct screening of hard cases from easy cases, to provide quality explanations for moderation decisions, to assist human reviewers in getting more contextual information, and to facilitate user participation in a more interactive way. Using normative theories from law and social sciences to critically assess the new technological application, this article seeks to redefine LLM's role in content moderation and redirect relevant research in this field.
... Contrary to what has long been argued, co-regulation is not a form of delegated legislation in favor of privileged relationships between private parties' legal innovations and specialized regulatory and enforcement bodies -in the case of data protection, the leading supervisory authorities' peculiar interpretation of EU law. 105 The neglect of existing accountability mechanisms in the enforcement phase of the market for legal rules has multiple anomalous consequences, which are also detrimental to those actors who seek to take advantage of such a regulatory model. On the one hand, it leaves economic agents unprepared for the possibility that legal innovations will be rejected by the guardians of the legal system as a result of the competitive selection of (in)suitable solutions. ...
This essay provides a legal-economic canvas of the institutional co-evolutionary dynamics that are disrupting the legal foundations of digital markets to make sense of contested 'commodification bets' from personal data to AI. Drawing from the experience of information capitalism, we make a general argument about the anomalous coordination between legal, technological, and economic dynamics, which is reinforced by the over-reliance on co-regulatory strategies proposed by current regulatory measures (e.g., the European AI Act proposal) as a solution to regulate disruptive technologies. It is argued that the co-regulatory model exacerbates legal instability in emerging markets, as it is subject to moral hazard dynamics, all too favored by an over-reliance on the goodwill of private actors as well as on the enforcement priorities of Member States' DPAs. Stalling strategies, and regulatory captures can flourish within such a model to the advantage of economic agents' commodification bets, thus prolonging what we call the 'extended legal present', in which a plurality of possible legal futures compete with each other, and which is fraught with eco nomic and political uncertainty. The first part briefly recounts how the fundamental commodification bets over personal data at the core of the digital economy have been deployed and partly rejected by the EU judiciary and Data Protection Authorities, pointing to the poor adaptation of economic agents' legal practices despite the emerging legal fault lines at the heart of European digital markets. The second part outlines a theoretical framework for the functioning of the 'market for legal rules' that the co-regulatory model allows to make sense of and explain the current legal-economic drifts. It also highlights the presence in the legal domain of anomalies and distortions typically associated with market exchanges in general. The third part juxtaposes such a theoretical framework with the current flares of legal uncertainty surrounding the commercial release of AI-based products to highlight the sense of déjà vu in the creation of the legal foundations for AI and to call for a course correction in the over-reliance on co-regulation. It concludes with several policy considerations, including institutional diversification as a resilient strategy in the face of legal uncertainty to avoid possible "legal bubbles" in the making. 2
... Further, adopting a rational perspective disregards the unique responsibilities of public authorities in terms of serving the poor, ensuring their security and maintaining social equality, which are less likely to be performed by the private sector (Haque, 1996; see also Perry and Wise, 1990). As Freeman (2000) noted, the adoption of an economic perspective by public entities may raise considerable accountability issues. In the present case, this approach resulted in the leastadvantaged group (foreign workers) paying the cost of the pandemic as the government focused its efforts and demonstrated its accountability mainly for the benefit of the special interest group (nationals). ...
Purpose
This study analyses the socioeconomic impact of COVID-19 on government accountability regarding the employment of both national and migrant workforces by bringing evidence from an emerging market. In doing so, this study addresses if/how the government discharged its accountability to the public during this recent global health crisis, which started in late 2019, with its effects still being felt today.
Design/methodology/approach
This study is based on a close reading of the relevant news media (local and international), published research and official reports, as well as ten conversations with business managers to analyse the socioeconomic impact of COVID-19 on government accountability in the Kingdom of Saudi Arabia (KSA). This study draws on insights from public choice theory in trying to understand why some governments take an economic perspective while exercising accountability to their population during the pandemic.
Findings
It was found that COVID-19 led the government to pursue plans for the localization of the professions and increase employment rates among nationals vs. foreigners or migrant workers. The crisis was exploited by the government to achieve macro socio-political and economic goals, demonstrating its accountability to citizens, rather than foreign workers. This shift shows that difficult and exceptional circumstances can present opportunities for policymakers in emerging markets to achieve national policy and political aims.
Originality/value
This study enhances the author’s understanding of accountability during crises (i.e. crises-induced accountability) in emerging markets. The analyses presented enrich the crisis management literature by highlighting the implicit actions of national leaders that affect the lives and well-being of their constituents, especially vulnerable groups.
... There is a long acknowledged need to think constructively and proactively about the assets and deficits of distinct public and private actors that can be harnessed to meet governance objectives [14]. Examining how powerful entities in a domain are approaching the governance of algorithmic decision-making provides insight into current capabilities and competencies, as well as factors limiting the emergence of sound governance models. ...
Private and public sector structures and norms refine how emerging technology is used in practice. In healthcare, despite a proliferation of AI adoption, the organizational governance surrounding its use and integration is often poorly understood. What the Health AI Partnership (HAIP) aims to do in this research is to better define the requirements for adequate organizational governance of AI systems in healthcare settings and support health system leaders to make more informed decisions around AI adoption. To work towards this understanding, we first identify how the standards for the AI adoption in healthcare may be designed to be used easily and efficiently. Then, we map out the precise decision points involved in the practical institutional adoption of AI technology within specific health systems. Practically, we achieve this through a multi-organizational collaboration with leaders from major health systems across the United States and key informants from related fields. Working with the consultancy IDEO.org, we were able to conduct usability-testing sessions with healthcare and AI ethics professionals. Usability analysis revealed a prototype structured around mock key decision points that align with how organizational leaders approach technology adoption. Concurrently, we conducted semi-structured interviews with 89 professionals in healthcare and other relevant fields. Using a modified grounded theory approach, we were able to identify 8 key decision points and comprehensive procedures throughout the AI adoption lifecycle. This is one of the most detailed qualitative analyses to date of the current governance structures and processes involved in AI adoption by health systems in the United States. We hope these findings can inform future efforts to build capabilities to promote the safe, effective, and responsible adoption of emerging technologies in healthcare.
... In other words, a move away from a hierarchical and top-down management of public goods and services (government) toward a decentralization of decision-making, recognizing that various actors, decision makers, and institutions can shape policies and deliver goods and services (governance). The rise of this conception of governance ushered in during the 1980s the predominance of public-private partnerships (PPPs) and more generally the extensive use of forms of negotiated decision making between public and private actors (Freeman 2000). This form of governance, at the national and local level, altered the state's role in and relationship to markets. ...
A new model of urban governance, mapping the route to a more equitable management of a city's infrastructure and services.
The majority of the world's inhabitants live in cities, but even with the vast wealth and resources these cities generate, their most vulnerable populations live without adequate or affordable housing, safe water, healthy food, and other essentials. And yet, cities also often harbor the solutions to the inequalities they create, as this book makes clear. With examples drawn from cities worldwide, Co-Cities outlines practices, laws, and policies that are presently fostering innovation in the provision of urban services, spurring collaborative economies as a driver of local sustainable development, and promoting inclusive and equitable regeneration of blighted urban areas.
Identifying core elements of these diverse efforts, Sheila R. Foster and Christian Iaione develop a framework for understanding how certain initiatives position local communities as key actors in the production, delivery, and management of urban assets or local resources. Within this framework, they explain the forms such initiatives increasingly take, like community land trusts, new kinds of co-housing, neighborhood cooperatives, community-shared broadband and energy networks, and new local offices focused on citizen science and civic imagination.
The “Co-City” framework is uniquely rooted in the authors' own decades-long research and first-hand experience working in cities around the world. Foster and Iaione offer their observations as “design principles”—adaptable to local context—to help guide further experimentation in building just and self-sustaining urban communities.
... The concept of reconciliation between law and management can be detected in the criticism of new public management by De Leon and Denhardt (2000:96) who explained that the hyped public sector management reforms often brought administrators face-to-face with ''aspects of democratic governance they had once been accustomed to rejecting". Freeman (2000Freeman ( :1289 in the same year argued that a narrow or overly legalistic conception of public law was likely to underestimate the potential noneconomic benefits of privatisation. He thus favoured the use of public law as a facilitator and director of governmental affairs as opposed to their constraining nature to the role of the private sector. ...
Literature abounds with debates regarding the success of rehabilitation pro- grammes in the recidivism of offenders. Limited information is available on rehabilitation programmes of offenders serving sentences of incarceration. Various models for interventions of offenders exist worldwide. In South Africa, the 2005 White Paper on Corrections provides that rehabilitation and the prevention of recidivism are best achieved through correction and development. This research explores the effect of rehabilitation programmes on sentenced offenders at Kutama-Sinthumule Correctional Centre (KSCC). In line with the 2005 White Paper, correctional centres offer various rehabilitation programmes with the aim of reducing recidivism and rehabilitating sentenced offenders. The study used a qualitative research design and gathered data through semi-structured interviews using a purposive sampling technique. Upon completion, the programmes were found to enhance offenders` chances of employment post- prison. Gangsterism and the language medium was found to be a challenge.to offender participation. The article therefore recommends that programmes that encourage good relations between offenders and their families outside of prison be established, and that the Department of Correctional Services should improve their offered programmes to achieve the success of KSCC. Finally, the article recommends the reinstatement of the credit system as an incentive for participating in the rehabilitation programmes, and a revision of the language of instruction used during these programmes.
The book engages with the rising phenomenon of arbitrations between private and public actors and the concerns this raises for principles of constitutional law (specifically principles of democracy, the rule of law, and the protection of fundamental rights). It features twenty chapters dealing with almost forty jurisdictions from different corners of the world and examines how domestic legal systems and legal practice approach the involvement of public entities as parties to arbitration agreements and arbitration proceedings. It analyses to what extent the constitutional legal frameworks involved problematize private-public arbitration as a constitutional concern, and how different domestic legal systems ensure that private-public arbitration conforms to, and does not undermine, the public interest. The chapters analyse, inter alia, whether the governing domestic law treats private-public arbitration differently from commercial arbitration between private parties, to what extent domestic law permits such arbitrations, what regulatory frameworks domestic law sets up, and what control mechanisms domestic law establishes in order to ensure that the public interest is safeguarded when public entities agree to have disputes resolved through arbitration rather than in domestic courts.
Health Law as Private Law delves into the complex relationship between private law and health care. During the COVID-19 pandemic, the importance of public ordering and state-created rules was evident, yet this work reveals the equally important role of private agreements in shaping health care policy. The volume's five sections – theory and structure, reproductive care, costs and financing, innovation and institutions, contracts and torts – include innovative conceptualizations and approaches to applying private law to health law. Chapters authored by leading experts explore how private law can be utilized to address significant health care and public health problems, and to achieve much-needed health care reform. Comprehensive and timely, Health Law as Private Law opens new pathways that will influence future policy, jurisprudence, and regulation. This title is also available as open access on Cambridge Core.
Health Law as Private Law delves into the complex relationship between private law and health care. During the COVID-19 pandemic, the importance of public ordering and state-created rules was evident, yet this work reveals the equally important role of private agreements in shaping health care policy. The volume's five sections – theory and structure, reproductive care, costs and financing, innovation and institutions, contracts and torts – include innovative conceptualizations and approaches to applying private law to health law. Chapters authored by leading experts explore how private law can be utilized to address significant health care and public health problems, and to achieve much-needed health care reform. Comprehensive and timely, Health Law as Private Law opens new pathways that will influence future policy, jurisprudence, and regulation. This title is also available as open access on Cambridge Core.
This article examines European legislation and academic literature concerning the regulation of Credit Rating Agencies (CRAs) during times of crisis, focusing on the perspective of administrative law in global governance. To this end, it proposes a perspective that considers a communicative process to minimise negative consequences for society within the context of CRA regulatory activity. Existing regulations, reports from European, American, and international authorities, as well as relevant literature, are reviewed to understand how regulatory challenges are addressed in the era of globalization.
This Article explores the implications of Artificial Intelligence (AI)-driven innovation across sectors, highlighting the resulting legal uncertainties. Despite the transformative influence of AI in healthcare, retail, finance and more, regulatory responses to these developments are often contradictory, contributing to the opacity of the legal underpinnings of AI business. Our Article notes the common trend of commercializing AI tools amidst legal uncertainty, using innovative contractual solutions to secure claims. Over time, these innovations trigger overlooked legal conflicts, sometimes leading to outright bans on AI products due to negative impacts on some fundamental rights and democratic Governance. The core argument of our Article is that an over-reliance on co-regulatory strategies, such as those proposed by the European AI Act, exacerbates legal instability in emerging technological markets. This panorama creates an ’extended legal present’ when alternative legal expectations coexist, thus causing economic and political uncertainty that may elicit legal instability in the future. The concept of ’competing legal futures’ is introduced to illustrate how economic actors must bet on a legal future in the absence of guarantees that this future will materialize. To help analyze this complex narrative, we propose a theoretical framework for understanding legal, technological, and economic dynamics, highlighting anomalies in market exchanges within the co-regulatory model. Despite the focus on European developments, the practical and theoretical implications extend beyond the EU, making the Article relevant to a broader understanding of the legal-economic challenges posed by AI and digital innovation. We conclude by arguing for a course correction, proposing institutional diversification for resilient governance of legal innovation under uncertainty.
The article examines the public tasks reserved to the social state and how these tasks have been compromised by the advancement of various privatization processes. Under the allegation of the need to open the public sector to competition, the public monopoly gradually gave way to new monopolies and oligopolies, this time of a private nature. State management of public services has been replaced by business management, in the form of public-private partnerships. This resulted in a significant setback in the State's capacity for direct intervention in the economic and social fields. In the current context marked by the hegemony of neoliberal ideology, the viability of the permanence of the sum division that marked the development of political-legal thought, that is, the dichotomy of public tasks and private tasks, and how a sharing can be carried out is revisited. of responsibility between the State and companies in complex societies based on this division, without compromising the intervention powers inherent to a social State.
Korean Translation (Eng->Kor)
Foster, S. R., & Iaione, C. (2022). Co-cities: Innovative transitions toward just and self-sustaining communities. MIT Press.
https://product.kyobobook.co.kr/detail/S000213133349
Prior to 2014, state administrative courts’ authority was constrained due to the limited construction of administrative decisions and exclusion articles in the SAC. The GAA expanded these restrictions in 2014 by modifying those provisions. The court is empowered to review not only written administrative decisions but also unlawful factual government acts. However, the expansions give rise to multiple interpretations and legal coherence concerns. Crucial issues include jurisdictional conflicts between administrative courts and other courts, varying interpretations of legal standing requirements and legal injuries, identifying the government’s factual actions as defined by the GAA, and the existence of exclusion articles in the SAC. This study uses a systematic and conceptual legal interpretation and analysis with three approaches. It concluded that the basic principles and concepts in the SAC should not be neglected when interpreting the provisions of the GAA. There are certain legal coherence issues if the interpretation of the GAA is not linked to the SAC. To solve these problems, the GAA’s implementation and the extensive jurisdiction of the administrative judiciary require the integration and reformulation of substantive and procedural laws and judicial institutional relations.
From 2003 to 2018, all 50 states and the District of Columbia enacted breach notification laws (BNLs) mandating that firms suffering data breaches provide timely notification to affected persons and others about breach incidents and mitigation responses. BNLs were supposed to decrease data breaches and develop a market for data privacy where firms could strike their preferred balance between data security quality and cost. We find no systemic evidence for either supposition. Results from two-way difference-in-difference analyses indicate no decrease in data breach incident counts or magnitudes after BNLs are enacted. Results also indicate no longer-term decrease in data misuse after breaches. These non-effects appear to be precisely estimated nulls that persist for different firms, time-periods, data-breach types, and BNL types. Apparently inconsistent notification standards and inadequate information dissemination to the public may explain BNL ineffectiveness. An alternative federal regime may address these shortcomings and let a national BNL achieve goals state BNLs have apparently failed to meet.
Debates over prison privatization neglect to consider differences in legal access across private and public prisons. I argue that private prisons experience lower filing rates than public prisons, and that cases brought against publicly traded private prison companies are less likely to be dismissed and more likely to succeed than similar cases against public prisons. I find evidence consistent with these claims, a result that is not driven by other explanations of judicial decision-making. This paper has implications for skepticism of private interests in public policymaking, and encourages investigation of access to justice for inmates in public and private custody.
In recent decades, South East Asia has become one of the world's most popular destinations for foreign investment. The member states of the Association of Southeast Asian Nations (ASEAN) have employed varying modalities to pursue first security and then economic cooperation. This book explores regional law and governance in ASEAN through the lens of its regulation of foreign investment. It adopts a new framework to identify the unique ontological autonomy of the ASEAN Investment Regime beyond a simple aggregation of its individual member states. It deploys a sociology-led approach (especially constructivism) and emphasizes ideational factors (such as culture and norms) that guide state actions from within. The book explores the manner in which ASEAN's history and culture have fundamentally shaped its foreign investment policies, leading to outcomes that often depart fundamentally from the external structure and script of Global Investment Law.
The book studies emergence and consolidation of voluntary sustainability standards (VSS); private standards defining sustainability-related product features. The book takes stock of their success and their potential in mediating between economic and non-economic concerns of global production. Despite their private and voluntary nature, VSS generate profound consequences for the producers seeking certification, for the consumers purchasing certified products, and for others affected by their standards. VSS are used by public authorities in the EU as a functional complement to public measures regulating global value chains. At this juncture of market proliferation and public use of private regimes, this book studies how public authority can control, coordinate and review VSS. It studies how the regulation of VSS could unfold through substantive and procedural legal requirements in the domain of European Union law and World Trade Organisation law, as well as through the incentives offered by VSS employment in public measures.
This collection of essays draws together innovative scholars to examine the relationship between two legal and political phenomena: the shrinking of the state as a monopoly of power in favour of the expansion of power over individuals in private hands, and the change in the nature of rights. The authors expertly discuss the implications of the changing boundaries of state power, the legal responses to this development, its application to human rights, and re-conceptualizations of public life as obligations are handed over to private hands. This innovative book deals with an important set of problems and offers a fresh perspective of different legal themes in an integrated fashion.
Using a power-knowledge framework, this volume critically investigates how major global indicators of legal governance are produced, disseminated and used, and to what effect. Original case studies include Freedom House's Freedom in the World indicator, the Global Reporting Initiative's structure for measuring and reporting on corporate social responsibility, the World Justice Project's measurement of the rule of law, the World Bank's Doing Business index, the World Bank-supported Worldwide Governance Indicators, the World Bank's Country Performance Institutional Assessment (CPIA), and the Transparency International Corruption (Perceptions) index. Also examined is the use of performance indicators by the European Union for accession countries and by the US Millennium Challenge Corporation in allocating US aid funds.
Social networks have become an important part of the globalized world, and it is only normal that the law should apply to them. As intermediaries between different kinds of users, social networks, like internet service providers and search engines were at first ruled exempt from liability over content posted and shared. That was what we can today call the Internet’s first liability model for intermediaries. But social networks have evolved quite a lot and raised the question about their nature as true (neutral) intermediaries. From a model of exemption of liability controlled under self-regulation, other models have emerged, such as co-regulation and public regulation. This paper aims to study the current regulatory model for social networks in Portugal under the EU provisions and how that model should be interpreted under the CJEU recent case law.KeywordsSocial networksLiabilityResponsibilityPrivate enforcementRegulationIntermediariesCo-regulation
The report investigates the role of science in the policy-making process in order to deepen understanding of the science-policy interface and the ways in which the scientific basis underpinning policy might be strengthened to better support good environmental decision-making.
We found that current regulatory direction guiding decision making, prioritises economic efficiency and consideration of the impacts on "regulated parties". This focus on costs fosters industry protectionism and creates systemic inertia against change. A byproduct is that it also unreasonably elevates the evidentiary burden required to pass environmental reforms and incentivises conflict over the science. In short it can create perverse outcomes.
For example in the freshwater space, improvements to water quality will likely require land use change, yet policies capable of driving that change are the most difficult to progress, because they come with significant costs. This drives exemptions for the largest polluters (who would suffer the highest costs) and favours the selection of cheaper - but less effective - policy responses. Both of which undermine an evidence informed approach.
The Report is part of EDS' ‘Better Linking Science to Policy’ Project and was funded as part of the Our Land and Water National Science Challenge, through Challenge contractor AgResearch.
The environment in which public and private organizations operate has become increasingly complex and highly unpredictable. Though social issues arise in a policy field, they are likely to escalate, possibly through a pattern affected by delays. These complex features characterize “wicked” community problems.
India’s performance in education presents a conundrum that is not easily explained. While it has expanded access to most parts of the country, and established world class institutions of higher education, it still has among the highest number of out of school children and a very poor record of school learning levels. In particular, the persistent and growing inequities in access and quality of basic education call into question the strategies and approach adopted. While many explanations have been proffered, in this article I take a close look at the government’s system of school education delivery.
The project examines the proliferation of high-rise luxury towers and real estate investment to understand the transformations of urban governance under financial capitalism. For both the city and finance, urban space is of central importance. For the city, it is the place of interactions, public life and culture, markets, corporate activities, and residential life. For finance, it is the site that makes for valuable real estate invested directly through specific projects and indirectly through financial instruments. Both luxury towers and real estate investment are crucial sites of financialization of urban space which reveal the accompanying transnational transformations of urban governance. The project makes three broad, interrelated claims. First, cities play a significant yet under-appreciated role in financial capitalism because of their power to regulate urban real estate. Second, the increasing integration of urban real estate into the global economy through financial instruments changes who is governing urban space and how it is being governed. Third, through the pursuit of urban space by the various actors acting in the interests of finance, the idea of the public itself is being re-imagined. In making those claims, it first provides a conceptual account of financialization and urban governance in relation to real estate and urban space. It then tells a story of the loosening of global capital controls and the institution of property regimes to protect foreign investors, how much of that investment has “landed” in cities and in real estate in particular, and how urban spaces around the world are being turned into instruments of financial speculation at the same time that individual and cultural subjectivities are shifting towards that of finance. It substantiates the connection between financial capitalism and real estate by exploring various mechanisms through which capital was channeled into international forms of investment and securitized financial instruments which relied on real estate for their underlying symbolic or actual assets. It examines the transformation of urban governance through two case studies: Newham, United Kingdom, and Gurgaon, India, each illustrating different instantiations of the encounter between financial capitalism and local government.
O artigo aborda a questão do crescente avanço da exploração econômica privada de serviços públicos no Brasil, no contexto das chamadas parcerias público-privadas. São examinadas as contradições existentes nas promessas de eficiência ligadas à transposição da concorrência e de modelos de gestão privada para esta categoria de serviços, vinculados à concretização de direitos fundamentais. Abordam-se, de maneira especial, os casos de serviços de saúde e saneamento básico.
Objective: The smart city is defined as a mix of urban strategies aimed at optimizing and innovating public services. Current cities are hybrid and affected by complex systems with inter-institutional collaboration. This study aims to understand which variables are most present and important according to the literature review and comparative analysis of two case studies.
Methodology: The authors have chosen the emerging smart city of Turin and Lugano to conduct a cross-analysis based on the matrix proposed by Yin (2017). This research is charac-terized as a holistic study of multiple cases.
Findings: The research was carried out thanks to results produced by literature and emerg-ing from the analysis of realities exposed, to assess the performance of projects and urban sustainability. A set of 71 indicators has been designed to assess the impacts of a smart city. 5 Indicators are related to management performance, 18 to governance and 48 to reporting.
Value Added: This research aims to implement the theory of information reporting by providing guidelines for indicators in inter-institutional, cross-sectoral and multi-level con-texts maximising smart factors in cities and meeting stakeholder needs in a hybrid organiza-tion.
Recommendations: Future research is recommended to confirm the relevant indicators for stakeholders associated with communication methods.
This essay uses a specific example—proposals to exclude sugary drinks from the Supplemental Nutrition Assistance Program (SNAP)—to explore some features of the contemporary U.S. administrative state. Dating back to the Wilsonian origins of the U.S. administrative state there has been uncertainty about whether we can and should separate politics and administration. On the traditional view, the agencies are to be kept separate from politics—technocratic and value-neutral—although they are indirectly accountable to the president and Congress. The SNAP exclusions example shows, however, that agencies often must make complex and controversial decisions on their own, decisions that go beyond value-neutral technocratic administration. When authorizing legislation has multiple goals, as we’ll argue is the case in the SNAP example, an agency will have to choose between conflicting statutory mandates. Moreover, as the SNAP example shows, agencies often face complex normative questions of ethics and justice that go beyond the question of how to balance competing aims. The appropriate response to the SNAP exclusions example is not to keep politics out of administrative decision-making, but to develop procedures that allow ethical and political questions to be addressed in agency policy-making, consistent with overarching commitments to fairness and democracy.
A Lei nº 8.429/92 (Lei de Improbidade Administrativa) foi alterada pela Lei nº 13.964/2019, tendo sido introduzido o acordo de não persecução cível (ANPC) em matéria de improbidade administrativa. Esta pesquisa buscou identificar se essa alteração legislativa representa verdadeira inovação no ordenamento jurídico. Em exame empírico, realizou-se um levantamento sobre o quantitativo de acordos homologados no âmbito do Ministério Público Federal, ao longo do tempo, examinando-se os dados antes e depois da Lei nº 13.964/2019. Os achados apontam que a realidade estudada não foi significativamente impactada. Conclui-se que a modificação legislativa representa mera ratificação de prática já usual.
In recent decades, the Organisation for Economic Co-operation and Development (OECD) has become a powerful forum for trade liberalization and regulatory harmonization. OECD members have worked to reconcile divergent national regulatory approaches, applying a single framework across sovereign states, in effect determining whose knowledge-making practices would guide regulatory action throughout the industrialized world. Focusing on US regulators, industry associations, and environmental groups, this article explores the participatory politics of OECD chemical regulation harmonization in the late 1970s to early 1980s. These efforts were conditioned by differential institutional access and resources among stakeholders who sought to shape regulatory knowledge rules. Facing competing European and US approaches to chemical data—a minimum “base set” of test data versus case-by-case determinations—OECD members chose the European approach in 1980. However, US regulatory politics shifted with the election of President Reagan, prompting industry associations to lobby the US government to block the agreement. Examining the micropolitics of these standards in the making, I demonstrate that while long-term structures advantaged industrial actors, ideological alignment with the US government precipitated their decisive influence. The case illustrates the importance of attending to the distinctive politics of international harmonization and the effects on transnational knowledge-making and regulatory intervention.
This article examines a high-profile “naming and shaming” campaign launched by the activist group People for the Ethical Treatment of Animals (PETA) targeting the controversial sheep husbandry practice of mulesing. This campaign led to important changes to the “rules of the game” governing global merino wool production. This article suggests that contests between activists and other stakeholders over the framing of the policy problem and activists’ choice of strategy can result in co-optation of activist ideas by corporate actors. The possibility of co-optation of ostensibly successful social movement campaigns highlights the importance of considering such campaigns in light of movements’ values and longer-term goals.
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Regulation of risks to society is one of the most important spheres of action of a modern state, and an important theme in discussions about the role of the state and public administration. The author attempted to identify several paradigms underlying risk regulation by pointing to socio-legal challenges for risk regulation in the era of regulatory capitalism. Risk regulation is a multidisciplinary issue, and legal aspects are not the only source of concern. The study of law in the governance of risk highlights the need for a critical and conceptual approach to risk governance. Each paradigm may have an impact on legal issues in technological risk regulation, and their better understanding should lead to a better understanding of the role of law in the process of risk regulation. Being focused on paradigms as generalisations, this article has been largely cast at a conceptual level; empirical conclusions mostly remained out of its sphere.
Economics: the dismal science. But surely this insults the messenger who brings the bad news. Economic method is not dismal, unless the mere sight of mathematics and statistics makes you depressed. Economics tries to reveal the costs in time, money, and energy of all of life's enterprises; it refuses to permit dreamers to ignore scarcity. But if resources really are scarce, are we better off ignoring the truth?
This question is of greater importance for progressives than conservatives. While conservatives can oppose government regulatory and spending programs "on principle," a credible progressive movement must weigh the costs as well as the benefits of reform. It is, then, odd and unfortunate that law and economics is often associated with a set of conservative and, to many, morally dismal ideologies that have no intrinsic connection to the economic analysis of legal problems. This Comment urges the development of a reformist law and economics, closely linked to administrative law and based on public finance theory, public policy analysis, and social choice theory.
A distinctive and pervasive problem arises when government regulation designed to diminish one health risk actually increases other health risks. For example, bans on the use of asbestos may lead companies to use other, more dangerous substitutes. This essay explores health-health tradeoffs, including those that arise because regulatory expenditures increase poverty and unemployment and in that way increase poor health. The essay proposes institutional changes designed to ensure aggregate risk reduction rather than mere risk redistribution. It includes some general remarks about individual and collective rationality in the context of health risks.
This paper examines the law and economics of informational regulation (IR) of environmental risks. Informational regulation here means regulation which provides to affected stakeholders information on the operations of regulated entities, usually with the expectation that such stakeholders will then exert pressure on these entities to comply with regulations in a manner which serves the interests of stakeholders. As such, IR reinforces and augments direct regulatory monitoring and enforcement through third-party monitoring and incentives. The paper provides two contrasting frameworks, from law and economics, to analyze the costs and benefits likely to arise from IR and concludes with a discussion of the appropriate scope of IR as a substitute for and complement of traditional environmental regulation and law.
It's been a tough day. I've spent most of it worrying about the Free Speech Principle. Or at least, the Free Speech Principle described in Cass Sunstein's Democracy and the Problem of Free Speech, a book by an author I greatly admire. According to Sunstein, the primary purpose behind free speech is promoting democratic deliberation about issues of public policy. Hence he divides speech into higher and lower tiers of protection. Speech most worthy of government protection is concerned with deliberation about public issues; the rest is subject to varying degrees of government regulation. It is a thesis with a considerable historical pedigree. Alexander Meiklejohn made a similar claim in the 1940's. Moreover, like Meiklejohn, Sunstein emphasizes that the scope of individual rights should consciously be shaped in order to promote the goals of democratic deliberation. Conversely, we should be less concerned about regulation of other types of speech-for example, advertising and pornography-because they do not contribute to democratic deliberation.
Having argued that it is important to think about court norms, Gulati and McCauliff describe data on the publication practices of the various circuits. The data suggest that there are radical differences in the norms.
Antitrust's state action doctrine immunizes anticompetitive restraints from antitrust review if they are imposed by the act of a state government. In this Article, Professor Wiley argues that eroding confidence in regulation has paralleled a shift in state action doctrine: the Court's earlier broad deference to state sovereignty has been narrowed by restrictive definitions of state action that often permit federal antitrust review of important state regulatory policies. Professor Wiley contends that current doctrine, which characterizes anticompetitive restraints as the product of state action only if they are clearly expressed and actively supervised by a state, is a bad procedural compromise that neither satisifies concerns over state sovereignty nor addresses the fears of "capture" that eroded confidence in regulation. Instead, Professor Wiley proposes that a state or local restraint on competition should be preempted by federal antitrust law if and only if the restraint (1) arose from producer "capture," (2) did not directly address a substantial market inefficiency, and (3) was not covered by a federal antitrust exemption.
Even when political interests control bureaucratic outputs, the control of policy outcomes is complicated by trade-offs between controllable versus effective implementation strategies. I use a nested game framework to explain why a cooperative strategy can increase enforcement effectiveness in the narrow administrative game and why principal-agent control problems and collective action problems associated with the strategy lead policy beneficiaries to oppose the effective strategy in the broader political games. Analyses of state-level Occupational Safety and Health Administration enforcement provide evidence that cooperation does enhance the impact of enforcement in reducing workplace injury rates but that policy beneficiaries oppose and sabotage cooperation. The interactions between administrative effectiveness and interest group politics in this and other implementation situations require that both be analyzed simultaneously, and the nested game framework can provide a systematic approach to such analyses.
The traditional model of American administrative law has been centrally concerned with restricting administrative actions to those authorized by legislative directives. Professor Stewart traces the development and disintegration of the traditional model, which has proven unsuccessful in its effort to reconcile the discretionary power enjoyed by agencies with the basic premise of the liberal state that the only legitimate intrusions into private liberty and property interests are those consented to through legislative processes. He presents a critical analysis of several responses to the contemporary critique that agencies exercise their discretion in favor of organized and regulated interests, including the efforts by federal judges to transform the elements of the traditional model to ensure more adequate representation for all interests affected by agency decisions. The emerging interest representation model of administrative law, he concludes, ultimately fails as a general structure for legitimating agency action.
Transactors commonly make commitments that are not enforceable under the formal rules of contract formation. These commitments may be too vague, may lack consideration, may fail to satisfy legal formalities, or may include an explicit disclaimer of legal liability. Nonetheless, transactors consider many of these nonlegal commitments reliable because "nonlegal sanctions" - such as the desire to maintain reputation or profitable relationships, the concern for standing among peers, and the force of conscience - induce the promisor to keep his commitments. In this Article, Professor Charny provides a systematic analysis of these nonlegal sanctions. The analysis begins by explaining why current contract doctrine and theory have difficulty providing a coherent account of when nonlegal commitments should give rise to legal liability. Professor Charny then advances three theses. First, he demonstrates that transactors often rationally rely on nonlegal rather than legal sanctions to enforce their commitments and that, in this situation, courts harm transactors by interfering. Second, he shows that, when transactors have poor judgment or face high drafting costs, legal intervention may improve the welfare of transactors, taken as a group. Third, Professor Charny applies these conclusions to reassess common law and administrative regulation of commercial transactions. In particular, a proper understanding of nonlegal sanctions implies a more rigorous, and analytically coherent, approach to legal regulation through open-ended doctrines such as promissory estoppel and the duty of good faith.
Reform strategies aimed at improving the lives of women in American society have ranged from efforts to ensure equal treatment for women in the marketplace to the establishment of family courts to promote fair treatment and harmony within the household. In this Article, Professor Olsen argues that most reform efforts have been conceived and carried out from within the confines of a particular world view, a world view that perceives social life to be divided between separate though interdependent spheres of market and family. She concludes that this structure of consciousness - the dichotomy between market and family - not only has limited the effectiveness of reforms actually undertaken, but also has sharply curtailed the range of possible strategies conceived by reformers. Professor Olsen draws upon Feuerbach's model of historical progress, as well as upon our understanding of relations between the state and civil society and between male and female, to speculate upon the possibilities for radically improving the lives of all individuals, men and women, by transcending the market/family dichotomy.
In this Article, Professor Sunstein describes those aspects of republicanism that have the strongest claim to contemporary support, outlines the role of republican thought in the founding period, and explores some of the implications of republicanism for modern public law. Sunstein claims that the basic republican commitments involve (1) deliberation in government; (2) political equality; (3) universality, or agreement as a regulative ideal; and (4) citizenship. Professor Sunstein contends that all of these commitments played an important role during the founding period, generating a distinctive conception of governance. In his view, the common opposition between liberalism and republicanism is a false one; the founders were liberal republicans-a position that, Sunstein argues, is superior to its principal competitors. Sunstein claims that republican ideas suggest reformation of a number of current areas of modern public law, encompassing such contexts as statutory construction, campaign finance regulation, federalism, and discrimination. Professor Sunstein concludes with a discussion of recent proposals for group or proportional representation, arguing that such proposals can be supported by reference to the republican belief in deliberative democracy.
By what right may courts seek to remedy deficient administrative performance, and by what methods should they do so? This question has been answered in fits and starts, in the context of several existing remedies: rights to contest regulatory impositions, hearing rights concerning government benefits, implied rights of action, and most recently, rights to require an agency itself to take enforcement action. Professors Stewart and Sunstein offer a theory to explain both the conceptual similarities and the evolutionary differences among these remedies. They show how the remedies are linked with particular conceptions of the deepest purposes particular statutes are meant to advance: security of entitlements, expansion of production, and advancement of public values. These conceptions, they argue, justify judicial creation of such remedies in the face of legislative silence. Ordinarily, courts create these remedies as a matter of federal common law, subject to congressional preclusion; occasionally, however, the remedies are compelled by the Constitution itself. By thoughtful use of their remedial powers, courts can fill, in the regulatory era, the same role in protecting the citizenry that they filled when the common law stood nearly alone.
The emergence and rapid spread of business improvement districts ("BIDs") is one of the most important recent developments in American cities. BIDs have been controversial, with both supporters and proponents viewing the districts as part of a trend toward the privatization of the public sector. By examining the legal and political structures that determine BID formation, functions, finances and governance, this Article determines that BIDs are not private entities but are, instead, a distinctive hybrid of public and private elements. Moreover, although the particular fusion of public and private institutions, values and concerns embodied in the BID is unique, Professor Briffault demonstrates that an interplay of public and private themes is a longstanding tradition in American local government law. BIDs depart from the norm of democratic governance and they raise questions concerning equity in the delivery of local services. BIDs, however, are ultimately subject to municipal control and they provide a mechanism for providing the public services and investment that financially strapped cities need if they are to survive. With appropriate municipal oversight and limits, BIDs, and the experimentation in combining public and private roles that BIDs represent, can make a significant contribution to the quality of urban public life.
Title III of the Superfund Amendments and Reauthorization Act of 1986 seeks to reduce the risks of chemical accidents through a strategy of indirect regulation that relies on providing the public with information about chemical hazards. For this strategy to be effective, citizens must aggressively utilize the information provided to monitor industrial practices and press for risk reduction. Since prior research suggests it is very difficult to evoke the degree of citizen action that would be required to make a strategy of indirect regulation successful, and since the federal legislation provided no funds for implementation, there is a question of whether the structures set up by Title III are sufficient to achieve its objectives. This article reports the results of anational study that examined selected aspects of the implementation of Title III in an effort to assess the likely outcome of its attempt at indirect regulation. Our focus is on the degree to which the Title III-mandated Local Emergency Planning Committees are pursuing policies that are likely to get the necessary information to citizens and foster community debate on hazardous materials issues.
Recent works by neoconservatives and by Critical legal scholars have suggested that civil rights reforms have been an unsuccessful means of achieving racial equality in America. In this Article, Professor Crenshaw considers these critiques and analyzes the continuing role of racism in the subordination of Black Americans. The neoconservative emphasis on formal colorblindness, she argues, fails to recognize the indeterminacy of civil rights laws and the force of lingering racial disparities. The Critical scholars, who emphasize the legitimating role of legal ideology and legal rights rhetoric, are substantially correct, according to Professor Crenshaw, but they fail to appreciate the choices and possibilities available to an oppressed group such as Blacks. The Critics, she suggests, ignore the singular power of racism as a hegemonic force in American society. Blacks have been created as a subordinated "other," and formal reform has merely repackaged racism. Antidiscrimination law, she argues, has largely succeeded in eliminating the symbolic manifestations of racial oppression, but has allowed the perpetuation of material subordination of Blacks. Professor Crenshaw concludes by demonstrating the importance of exposing the racist nature of ostensibly neutral norms, and of devising strategies for change that include the pragmatic use of legal rights.
No conviction has been more a part of the standard interpretation of American history in the twentieth century than the belief that the U.S. Supreme Court, in a series of late-nineteenth-century decisions bearing on government-business relations, reflected the conservative reaction that seemed to mark the depression of the 1890s. But Professor McCurdy demonstrates that in its 1895 decision in the case of United States v. E. C. Knight Company, which drew a distinction between manufacturing and trade in defining interstate commerce, the Court was not trying to shield a vast, monopolistic aggregation of wealth (Henry O. Havemeyer's “Sugar Trust”) from the will of the people that it be broken up under the Sherman Antitrust Act of 1890. The decision, in fact, was not the beginning of a conservative reaction, but the last effort in a thirty-year attempt to maintain a role for state jurisdiction over the behavior of chartered enterprises.
In view of the significance of Congress' power of the purse, it is surprising that there has been so little scholarly exploration of its contours. In this Article, Professor Stith draws upon constitutional structure, history, and practice to develop a general theory of Congress' appropriations power. She concludes that the appropriations clause of the Constitution imposes an obligation upon Congress as well as a limitation upon the executive branch: The Executive may not raise or spend funds not appropriated by explicit legislative action, and Congress has a constitutional duty to limit the amount and duration of each grant of spending authority. Professor Stith examines forms of spending authority that are constitutionally troubling, especially gift authority, through which Congress permits federal agencies to receive and spend private contributions without further legislative review. Other types of "backdoor" spending authority, including statutory entitlements and revolving funds, may also be inconsistent with Congress' duty to exercise control over the size and duration of appropriations. Finally, Professor Stith proposes that nonjudicial institutions such as the General Accounting Office play a larger role in enforcing and vindicating Congress' power of the purse.
In a recent report to the Harvard Overseers, Derek Bok called for a new direction in legal education. He decried "the familiar tilt in the law curriculum toward preparing students for legal combat," and asked instead that law schools train their students "for the gentler arts of reconciliation and accommodation." He sought to turn our attention from the courts to "new voluntary mechanisms" for resolving disputes. In doing so, Bok echoed themes that have long been associated with the Chief Justice, and that have become a rallying point for the organized bar and the source of a new movement in the law. This movement is the subject of a new professional journal, a newly formed section of the American Association of Law Schools, and several well-funded institutes. It has even received its own acronym-ADR (Alternative Dispute Resolution).
This Comment examines the regulations governing California's Safe Drinking Water and Toxic Enforcement Act, Proposition 65. The author argues that the current regulations are founded on an incorrect assumption-that the Panel can reach decisions based solely on scientific facts, independent from subjective political value judgments. In response to this error on the part of the state officials, the Comment proposes a series of regulatory changes, centered around providing the Panel with a balanced membership, protecting the Panel from improper influences that might bias its conclusions, and implementing consistent scientific standards and administrative procedures to ensure that the Panel serves as a reliable and impartial forum. These changes should enhance the Panel's ability to make both scientific and regulatory decisions in a "trans-scientific" decisionmaking environment.
The current debate about corrections' privatization neglects the extensive overlap of business, political, and private interests that shapes public corrections policy. Based on current developments in the United States it is possible to identify a corrections-commercial complex. As Deep Throat reportedly said to Washington Post writer Bob Woodward in an underground parking garage after he and Carl Bernstein uncovered the Committee for the Re-election of the President's secret fund in 1972: “Follow the money.”
Nongovernmental organizations (NGOs) are increasingly important participants in international environmental institutions. NGOs have been formally—but not fully—incorporated into what were previously “states-only” activities. This article surveys these new participatory roles and offers an analytical framework for understanding the pattern, terms, and significance, for international theory, of NGO inclusion. NGOs are distinctive entities with important skills and resources to deploy in the process of international environmental cooperation. Rather than undermining state sovereignty, active NGO participation enhances the abilities of states to regulate globally. The empirical pattern of NGO participation has been structured across time and functional areas to reap these gains. Recent evidence from the restructuring of the World Bank's Environment Facility is used to test these claims. That NGOs are now more pervasive in international environmental institutions illustrates the expansion, not the retreat, of the state in addressing global environmental problems.
In 1859, in the seminal case of Lawrence v. Fox, the New York Court of Appeals defied the prevailing rules of contractual liability by holding that a third party - someone who was not a party to the contract, had no obligation under it, and had given nothing in exchange for the right being claimed - could, nevertheless, enforce it. In this Article, Professor Waters embarks on a detailed inquiry into the events that led to that litigation and the influences that combined to produce "the rule of Lawrence v. Fox." He then explores how the aberrant rule that grew out of that case came to be adopted in almost every jurisdiction in this country, focusing on the sustained and successful efforts of Arthur Corbin to promote just such widespread acceptance. Finally, Professor Waters discusses the sharply increased use of the broad, modern third party beneficiary rule as a means of protecting the intended beneficiaries of public programs in which funding contracts are employed. He analyzes this use of the rule in terms of its quasi-contractual origins and relates the public law development of the "new property" to the equitable property idea that is the basis of restitution. In conclusion, he argues that we have no better guide to dealing with third party beneficiary claims arising out of public programs than the history of the third party beneficiary rule itself.
This research evaluated compliance with U.S. pollution prevention regulations from storm water discharges associated with industrial activities, focusing on facilities that had failed to complete first-stage compliance requirements ("filed") approximately 5 years after the regulations took effect. The number of facilities is not readily estimated because the regulatory structure requires facility-specific determination of requirement to comply based on factors not included in publicly available data. The research estimated the proportion of identifiable facilities actually subject to regulations using the universe of potentially covered California facilities developed in Part I of this research. Researchers mailed information to about 3,600 nonfiling facility operators to request they determine whether their facilities were included. Researchers then independently assessed inclusion for several samples of about 200 facilities in the Los Angeles region. Results suggested about half of the identified mandatory-compliance manufacturing facilities probably should comply, and at most half of those had filed through the first 5 years of the permit. The ability or willingness of facility operators to correctly assess inclusion was limited; about one-fourth of facility operators claiming nonapplicability were incorrect, and over one-third of contacted facilities failed to respond to mailings. Telephone interview techniques reliably assessed inclusion for many facilities but left undetermined a large proportion of identified facilities. Field verification suggested over one-fourth of nonresponding facilities conducted industrial activities outdoors where pollutants were exposed to storm water, and were probably subject to regulations, including a significant portion of facilities whose coverage was undetermined by telephone methods.
An important question of positive and normative legislation theory is what role courts should assume when they interpret statutes (as opposed to the Constitution and the common law). One can imagine the range of roles as a continuum. At one pole is an "archeological approach," in which a court's role is to unearth and enforce the original intent or expectations of the legislature that created the statute. Under this approach, statutory interpretation is an effort to discern the original answer put into the statute. At the other pole is a "free inquiry approach," in which the court's role is to reach the best result, formally unconstrained (though perhaps influenced or persuaded) by the statute's text and legislative history. These two poles represent different aspirations for statutory interpretation. The archeological approach appeals to formal legitimacy (the nonelected judge is not exercising any discretion but is merely carrying out the will of the majoritarian legislature), while the free inquiry approach appeals to functional legitimacy (justice or good results).
We live in a time of widespread dissatisfaction with the legislative outcomes generated by the political process. Too often the process seems to serve only the purely private interests of special interest groups at the expense of the broader public interests it was ostensibly designed to serve. While the current distrust of government represents a major shift away from the dominant public perception of "government as helper" that existed from the time of the New Deal until the present decade, the current attitude is not new by any means. As Professor Sunstein has observed, "[t]he problem of faction has been a central concern of constitutional law and theory since the time of the American Revolution." In fact, a basic justification offered by the framers for their new Constitution centered around its usefulness in controlling interest groups.