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Abstract:
On February 3, 1999, Dean Alfred C. Aman, Jr. delivered the Third Annual Snyder Lecture at Cambridge University. This lecture recently has been published in 6 Ind. J. of Global Legal Stud. 397. It examines Administrative Law Reform, and is part of a larger work now in progress, dealing with the APA and possible legislative approaches to Administrative Law Reform. This lecture builds on the theoretical perspectives on globalization and their implications for administrative and constitutional law, as set forth in Aman, The Globalizing State: A Future-Oriented Perspective on the Public/Private Distinction, Federalism, and Democracy, 31 Vand. J. Trans. Law 719 (1998).

The lecture sets forth four different conceptions of globalization -- the comparative/international model, globalization as Americanization, globalization as denationalization, and what the author calls "the globalizing state." With these frameworks in mind, the lecture then examines Administrative Law Reform, arguing that for years, U.S. public law debates have been dominated by the question of which public institution should be responsible for certain kinds of policymaking -- the court, the legislature or the administrative agency. The democracy problem inherent in globalization, however, is more fundamental. It involves more than a debate over which public institution is best suited to decide certain kinds of legal issues. What is at stake when the "globalizing state" delegates power to the market and various non-State private actors often is a far more striking choice between some democracy (or participation) and none at all.

The lecture then considers APA reforms in three contexts: (1) the extension of the APA to certain private entities; (2) the creation of greater transparency and opportunities for participation in the processes of contracting out governmental functions to private entities; and (3) the need for a global impact statement in certain kinds of rulemaking proceedings.

The lecture concludes that the APA of the future should include within its scope private entities carrying out public functions, a requirement that the global implications of domestic policies be considered if not coordinated with international strategies to deal with global problems, and an evolving sense of how public participation and transparency might be facilitated by the very technologies that are raising new issues, given their undeniably global characteristics.

Abstract:
Administrative law has an important role to play when it comes to providing democratic forums for deliberation and decisionmaking on a wide range of issues. In this paper, I will argue that domestic administrative law potentially offers a means for addressing human rights problems arising from privatization, particularly privatization in the United States dealing with prisons. As this paper will argue, creating opportunities for citizen involvement in what otherwise might be thought of as private decisionmaking processes may help prevent human rights problems before they occur. At a minimum, such an approach can create the forums and information necessary for meaningful and timely politics to develop around issues that, once privatized, can all too easily fall from public view. To make these arguments, this paper will focus exclusively on U.S. law as a case study of these issues.

Privatization, administrative law, human rights, prisons

Abstract:
This article argues that a new administrative law is emerging, characterized in part by the following factors: (1) new blends of public and private power at all levels of government; (2) a redefinition of what is public and what is private; (3) greater reliance on bargaining and negotiation models of power; (4) a diminution of public participation stemming from increased reliance on privatization and, in effect, the delegation of public function to private entities; and (5) a market discourse that arguably narrows the role of noneconomic values in decisionmaking processes.

I will argue that these emerging trends are indicative of the ways globalization has changed the nature of the relationship of markets to the state, creating a democracy deficit and necessitating new roles for administrative law.

globalization, administrative law, democracy deficit, privatization, deregulation, corporatism

Abstract:
Especially after 1980, our belief in and our use of law to solve societal problems seemed to decline precipitously, well beyond the ebb and flow of political trends and tastes. Beginning in earnest in the 1980s, political discourse increasingly treated law and markets primarily in binary terms. You could have one or the other, but not both. More law meant less markets and vice versa. When it came to choosing between law or markets, the tide clearly had shifted. If injustices in the 1970s were greeted with the slogan "there ought to be a law", that approach to solving problems was now replaced with a new refrain: "there ought to be a market". In this essay, I address the question of why this turn to markets has occurred. I argue that we are not dealing with simply a swing of the political pendulum that will ultimately be reversed by a change in the party in power. The reasons run deeper than electoral politics and go to the fundamental changes that have occurred in the ways that states and markets now interact. I argue that this is, in fact, a major byproduct of a highly politicized, neo-liberal view of globalization in the United States, one that ultimately sees the global economy as a set of relentless, hegemonic forces that almost always require that policy makers favor markets over law. This essay suggests some of the ways that we can invoke law to help create the democratic means, flows of information, and political processes necessary to enable individuals to function not only as consumers but as effective, informed and engaged citizens as well.

administrative equity, administrative law, democracy deficits, deregulation, globalization, neo-liberalism, privatization

Abstract:
This article analyzes changes in administrative law through the lens of globalization. In so doing, it addresses a basic question: what role can the state effectively play as a regulator, given the collapses of the distinction between domestic and global, as well as between public and private?

This article argues that the impact of globalization processes on United States administrative law is transforming it in new ways. The effect of this transformation shifts the role of administrative law from legitimating new extensions of public power to legitimating new mixes of public and private power, new uses of private power and increased reliance on markets to further public interest goals.

deregulation, privatization, globalization, administraitive law, corporatism, private prisons, welfare reform, negotiated rulemaking

Abstract:
This article examines how the U.S. public law system adapted to change in the 1980s and how the regulatory structures and discourses of the past were being transformed by the global realities of the present. Tracing the evolution of administrative law during the regulatory eras of the New Deal and the environmental period of the 1960s and '70s as well as the global deregulatory era that began, in earnest, in the 1980s with the Reagan presidency, it illuminates key trends in the interpretation of constitutional and administrative law. In so doing, it provides insights into the process of legal change and the discourses that continue to shape our legal order today.

The article first analyzes the legal and political contexts of the New Deal and the environmental eras by focusing on two judicial review doctrines that typify them - the doctrine of deference in the New Deal and the hard look doctrine in the environmental era. It argues that these two approaches to judicial review were products of very different conceptions of progress and change in those periods and explains how courts chose between the two approaches when they reviewed agency deregulation of rules emanating from environmental health and safety concerns. Focusing on the emergence of the doctrine of presidential deference, it then examines agency deregulation and increased executive power as responses to increased global competition and the changing political and economic perspectives it requires. It goes on to analyze how emerging global environmental and developmental issues tempered domestic regulatory and deregulatory discourses based on the demands of global competition.

Executive power, administrative presidency, deregulation, deference, judicial review, administrative action, globalization, New Deal, hard look doctrine, progress, regulatory change

Abstract:
In the now famous case of Vosburg v. Putney, the Wisconsin Court enunciated the common law doctrine since known as the "eggshell skull" or "thin skull" rule: you take your victim as you find him. The thin skull rule is a productive starting point for a dialogue on the place of law in any effort to control (or reverse) the cumulative damage to the planet's ecosystem. Any such dialogue requires a global perspective that fuses international and domestic approaches to law. Environmental law must assess not only the level of assault against the earth, but also the risk of the planet's hypervulnerability to further injury. As in Vosburg v. Putney, some of the insult to the planet has been the result of unintended consequences, whose significance we are only now beginning to understand. The planet has become an eggshell victim of industrialization, population growth and the expansion of the consumer society.

The purpose of this essay is three-fold: (1) to link the relationship of international trade and domestic environmental regulation to a broader global discourse; (2) to outline this global discourse, which includes both international and domestic elements; and (3) to articulate some additional factors (beyond trade) that are now integral to the relationship between domestic environmental law and the global regulatory discourse.

eggshell planet, eggshell skull, trade, environmental law, ecosystem damage

Abstract:
This paper explores how administrative law can mitigate the democracy deficit that may occur when privatization shifts political debate into relatively private arenas, changes its focus, or precludes debate altogether. It also argues that the prevailing form and key terms of globalization in the United States derive from neo-liberalism, particularly in the binary division of public/private and their conflation with legal regulation and market responsiveness, respectively. This paper centers specifically on a case study involving the outsourcing of health care for prisoners by a private, for profit health care provider, Prison Health Care Services, using it as a means for exploring how a more effective merger of administrative law with the laws governing government contracts might occur. It analyzes two points of possible convergence between administrative law and government contract law - the contract writing phase and the oversight and monitoring activities that occur once the contract is in place, arguing that the historic purposes of government contracting law need to be reconceptualized.

Abstract:
Economic globalization has had a chilling effect on democracy since markets now do some of the work that governments used to do through the political process. More than two decades of deregulation have made a healthy economy appear to depend on unrestrained markets. But appearances are misleading-globalization is also a legal and political process. The future of democracy in the twenty-first century depends on the ability of citizens to reclaim a voice in taming globalization through domestic politics and law reform.

Can citizens govern globalization? Aman argues that they can, and that domestic law has a crucial role to play in this process. He proposes to redefine the legal distinction between public and private to correspond to the realities of the new role of the private sector in delivering public services, and thereby to bring crucial sectors of globalization back within the scope of democratic reform.

Basing his argument on the history of the policies that led to globalization, and the current policies that sustain it, Aman advocates specific reforms meant to increase private citizens' influence on globalization. He looks at particular problem areas usually thought to be domestic in nature, such as privatization, prisons, prescription drugs, and the minimum wage, as well as constitutional structural issues such as federalism and separation of powers.