The Contracting State
Harvard Law School
Florida State University Law Review, Forthcoming
In this article, Professor Freeman argues that contract is an increasingly important administrative and regulatory instrument, with significant implications for administrative law. She focuses on two species of contract-contracts to provide services or benefits (already well entrenched in the United States) and regulatory contracts (a nascent, but noteworthy, development) and argues that, in an era of widespread contracting out and devolution, and at a time of increasing experimentation with contracts as regulatory instruments, the pressure for government/private contracts to absorb public law norms of fairness, rationality and accountability will intensify. Conceptually, she claims, government/private contracts of both sorts force an uncomfortable interface between private and public law. They pose a host of doctrinal and theoretical problems for which administrative law provides no ready answers. Despite their significant risks, however, Professor Freeman suggests that government/private contracts might have significant benefits that we ought not to overlook. Indeed, contracts themselves can be potentially crucial accountability mechanisms in an era of greater private involvement in administration and regulation. They could, for example, allow third party beneficiaries to hold the contracting parties accountable for their commitments. Moreover, contracts may enable government agencies to accomplish indirectly, what, for legal or political reasons, they cannot achieve directly. As with grants in aid between the federal and state governments, public/private contracts could be a means of extending government priorities and policies to private actors, and of exacting concessions and gains that might otherwise be beyond its regulatory reach. Under the right circumstances Freeman argues, regulatory contracts could prove more -- or at least no less -- effective and democratic, than other regulatory instruments. The rise of contract may therefore signal not so much the retreat of the state, as a reconfiguration of the state's role in governance. That reconfiguration could conceivably amount to a net gain in accountability, or at least not a net loss.
Number of Pages in PDF File: 60Accepted Paper Series
Date posted: November 6, 2000 ; Last revised: August 23, 2011
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