Article

Privatization’s Pretensions

Jon D. Michaels

Acting Professor of Law, UCLA School of Law

For helpful comments, thanks are owed to Michael Asimow, Frederic Bloom, Ann Carlson, Joshua Civin, Sharon Dolovich, Jerry Kang, Sung Hui Kim, Allison Orr Larson, Toni Michaels, Hiroshi Motomura, Susan Rose-Ackerman, Steven Schooner, Seana Shiffrin, Kirk Stark, David Super, Eugene Volokh, Stephen Yeazell, and Noah Zatz. Tal Grietzer, Joshua Mandlebaum, Laura Podolsky, Ira Steinberg, Cathy Yu, and the staff of the UCLA Law Library provided invaluable assistance. I am grateful also to the participants at the 2009 Southern California Junior Faculty Workshop at Pepperdine Law School, the 2010 Berkeley-UCLA Junior Faculty Exchange, the Chapman University School of Law Colloquium, as well as to the editors of The University of Chicago Law Review. This Article is dedicated to Anneliese Beth, who was born during the drafting of this project.

For decades, policymakers have been privatizing government responsibilities for the customary, and ostensibly exclusive, objective of providing the public with the same goods and services more efficiently. It is becoming increasingly apparent that these policymakers are also doing something different: they are using that purportedly technocratic process to substantively alter the very policies they are supposed to be neutrally administering. And, it is working: these privatization “workarounds” can directly change the content of public education, health, and social welfare programs, the outcome of regulatory enforcement and rulemaking proceedings, and the trajectory of police and national security operations.

Workarounds provide outsourcing agencies with the means of accomplishing distinct policy goals that—but for the pretext of technocratic privatization—would either be legally unattainable or much more difficult to realize. In short, they are executive aggrandizing. They enable Presidents, governors, and mayors to exercise greater unilateral policy discretion—at the expense of legislators, courts, successor administrations, and the people.

Although lively privatization debates abound in the academy and inside the Beltway, both communities have given insufficient attention to this transformative and potentially transgressive practice. This Article tackles workarounds head-on. Specifically, this Article locates the structural process failures in government contracting that enable workarounds; develops an overarching conceptual framework and typology of workarounds; and prescribes a protocol for analytical and regulatory intervention.

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