Infusing Public Law into Privatized Welfare: Lawyers, Economists and the Competing Logics of Administrative Reform
Forthcoming, Law & Society Review
48 Pages Posted: 27 Jul 2016
Date Written: July 2016
Along with the trend towards “New Public Management” (NPM) and replacing the legal culture of public bureaucracies with market logic through privatization, we are also witnessing instances of “publicization”, the application of public law norms and mechanisms to privatized services. The article explores the role of government lawyers and economists in the dynamics of these administrative reforms. Using a detailed case study of welfare-to-work reform in Israel, it shows that the reconstruction of decision making and accountability patterns under NPM was the result of competing efforts by these professional groups to appropriate the “privatized state” to accord with their own institutional logics and interests. While economists advanced a “market” logic, lawyers tried to reproduce the logic of “law” in the post-bureaucratic setting. The study demonstrates how eventually public law norms were re-infused into privatized welfare as a result of the increasing institutional power of the lawyers in the regulatory space, along with wider political and social support for the entrenched legalistic mechanisms of the administrative state. However, in addition to the “battle of norms” between lawyers and economists, there were also concessions that led to the redrawing of the boundaries of public law along more functional, rather than formal, lines.
Keywords: Administrative justice, Administrative law, Welfare law, Social rights, Privatization, Contracting out, New Public Management (NPM)Regulation, Socio-legal studies
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