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Abstract:
This article asks whether privatization has become so successful as to challenge inherent limits on private control of public functions. It reviews the history of the public-private distinction and explores constitutional limits on the exercise of public power in private hands, including important new scholarship on the nondelegation and exclusive delegation doctrines. The connection of due process to delegation is emphasized, especially procedural controls as accountability mechanisms for overseeing privatized activities.

At the statutory level, the largely overlooked potential of the Subdelegation Act to limit as well as sanction delegations to public officials is elaborated. The current OMB A-76 process is addressed in detail. Holding public/private competitions over outsourced government functions is reviewed and its process deficiencies are highlighted. Under current interpretations, the basic question of what inherent government functions agencies cannot privatize is lost in the overall mandate to engage in competitive sourcing. Enhanced procedures for administrative review of this process, including a greater role for the Government Accountability Office (GAO), are recommended. Indeed, the article suggests that the A-76 process encapsulates the public-private debate in such a comprehensive way that the administrative law community can help reshape or rebalance that debate by reforming the process itself.

administrative law, delegation

Abstract:
This article, which will be a chapter in Government by Contract (Martha Minow and Jody Freeman eds., Harvard University Press 2008), addresses the proposition that some duties of government may not be transferred to private hands. It views the executive power as requiring public governance and connects Congress to this responsibility through the Appointments Clause. Officers of the United States are those officials directly charged with doing the public's business and any direct or indirect transfer of their responsibilities would run counter to the constitutional plan. Decisions at the margins, where government remains nominally in control, are less easy to categorize and issues of justiciability are always problematic. However, there remains a core of government responsibilities that must be protected from the increasingly robust privatization movement. This chapter is concerned with the transfer to private contractors of government power that might be considered inherent or significant under governing constitutional, statutory or regulatory norms (especially the Appointments Clause, the Subdelegation Act and OMB's A-76 process). Through a study of the Transportation Security Agency, it seeks to offer workable definitions of these limitations. This chapter connects to prior work by the author in Outsourcing Sovereignty (Cambridge University Press 2007).

administrative law, delegation, executive power

Abstract:
This article analyzes the by now accepted phenomenon of lawyer depression/pessimism and relates it to psychological literature and studies. The field of positive psychology, championed by Prof. Seligman, offers three causes for demoralization among lawyers: (1) pessimism; (2) low decision latitude and (3) a "zero-sum" mindset. As to the first two, the article posits ways to improve the lawyer's situation, but as to the third, since it involves a confrontation with the adversary model of justice, the application to lawyers is less clear. Thus, we set up the paradox that some degree of lawyer pessimism might be good for society, even if it is bad for the individual lawyer and we conclude by suggesting that non-zero dispute resolution may be of value.

Abstract:
In the era of privatization, when more and more government activities are being placed in private hands, a full understanding of procedural alternatives to due process becomes an urgent matter of public policy. When the government privatizes an activity it delegates public power and often leaves procedural issues unaddressed. At this juncture "private due process" becomes a meaningful consideration. Included within this realm are a disparate set of alternatives: state concepts of fair procedure, available either at common law or by statute; process mandated by statute to effectuate some specific federal purpose; process connected judicially to general federal statutes such as the antitrust laws; and due process protocols that are emerging from alternative dispute resolution procedures.

After evaluating the current state of the public and private procedural landscape, this article will address two questions arising from the current privatization debate: (1) can private procedural alternatives somehow be connected to the privatization of government functions; and (2) should federal law consider codifying these privatized procedures in a more general way. In other words, is it time to consider a private administrative procedure act?

Due Process, state action, administrative law

Abstract:
For many years, Congress has had various bills before it to create alternatives to the current practice of Article III review (in district courts) of Social Security disability cases. This report, prepared initially for the Social Security Advisory Board, reviews the various legislative proposals and statutory alternatives such as the Veterans Administration administrative/judicial review structure. It concludes that, on balance, review before an Article I court (with Court of Appeals review limited to purely legal issues) has numerous advantages over the present system. These advantages include improvements in the accuracy and consistency of results (the federal district courts have vastly divergent reversal rates) and in the creation of a regulatory feedback loop that would allow the SSA and its ALJs to learn why cases get reversed or remanded in the first place. The report disfavors the alternative of Article III review in a specialized federal court of appeals.

Social Security Disability Cases

Abstract:
This article raises a question that is rarely asked: Do outcomes (reversal/affirmance/remand rates) on appeal from administrative decisions bear a predictable relationship to the relevant scope of review standard? It turns out that the answer is both yes and no and that in two very active review systems (district court review over Social Security disability and FOIA decisions) the results run counter to what one might surmise based on the relative intensity of the review standards. While conclusions are carefully and necessarily hedged, the subject yields hypotheses worthy of further analysis.

Abstract:
This comment responds to articles by Professors Beerman and Lawson and by Professor Pierce that discuss the continuing relevance of Vermont Yankee as a technique to rein in substantive and procedural review of the agency rulemaking process. I suggest that proper case to exercise restraint is no longer Vermont Yankee but Chevron itself which should be applied to modify the hard look dimensions of State Farm. In making this connection I emphasize the significance of the Congressional Review Act and raise concerns that the agency reasoning process is increasingly being performed by consultants.

administrative law, rulemaking