Jody Freeman, The Private Role in Public Governance, 75 N.Y.U. L. Rev. 543 (2000).
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.