Public Law Values in a Privatized World

Abstract

Domestic law scholars and policymakers have long debated issues surrounding privatization.' Over the past twenty years, the U.S. government has increasingly contracted with private organizations to perform a variety of functions-from health care, to education, to welfare, to prison management. While advocates of privatization have generally argued for the practice on efficiency grounds, critics have worried that, even if privatization may cut financial costs, it can threaten important public law values. Because many constitutional norms protect individuals only from government misconduct, and because courts have been largely unwilling to view such norms as applicable to private contractors, these critics have argued that privatization will dramatically reduce the scope of public law protections in the United States. Others have sought a middle ground, arguing that privatization offers a means to extend public law values through the government contracts themselves, in a process of "publicization."