Jody Freeman


The Private Role in Public Governance

Jody Freeman

In this Article, Professor Freeman proposes a conception of governance as a set of negotiated relationships between public and private actors. Under this view, public and private actors negotiate over policy making, implementation, and enforcement, thereby decentralizing the decision-making process. Recognizing the pervasive and varied roles played by private actors in all aspects of governance, Professor Freeman challenges the public/private distinction in administrative law and invites a reconsideration of the traditional administrative law preoccupation with the accountability of “public” actors. The Article offers theoretical support for the new conception, drawing on both public choice theory and critical legal studies to argue that there is neither a purely private realm, nor a purely public one-only negotiated relationships between public and private actors. Professor Freeman’s argument 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. Professor Freeman not only invites administrative law to reckon with private power, but challenges the field’s almost uniform defensiveness toward private actors. She further argues that 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 nontraditional mechanisms. This notion of “aggregate” accountability produced through horizontal negotiation is offered as a contrast to the formal, hierarchical approach to accountability that dominates administrative law. Professor Freeman concludes by proposing a new administrative law agenda that places public/private interdependence at the heart of the inquiry.