An Administrative Law Perspective on Government Social Service Contracts: Outsourcing Prison Health Care in New York City

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.

Keywords: Private prisons, inherently governmental, privatization, contracting out, accountability, administrative law