Private parties, public functions and the new administrative law

Abstract

new york university law review volume 75 june 2000 number 3 articles the private role in public governance jody frieeman* 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 die per'asive 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 stndies 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 * acting professor of law, university of california los angeles. b.a., 1985, stanford university, ll.b., 1989, university of toronto; llm., 1991, sj.d., 1995, harvard university, freeman@law.ucla.edu. i am grateful to many generous colleagues at ucla and elsewhere for enormously helpful comments and …

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