Publication Date

1-2006

Journal

North Carolina Law Review

Abstract

The privatization movement is on the verge of succeeding too well. The fact that some of what government does can be done better and cheaper by the private sector has gained such momentum that the public sector is sometimes seen as redundant or irrelevant. But the economist's make-or-buy choice simply fails to capture the full range of responsibilities that government faces in deciding whether to outsource a particular function to private contractors.

This Article illuminates the public dimension of government functions. By exploring the public-private distinction and relating it to constitutional, statutory, and administrative requirements, it structures an argument that identifies and insulates inherent functions of government from the outsourcing calculation. The idea that some jobs in government are better performed by the private sector is accepted; but for other assignments, where policymaking is at stake, the public actor is not fungible or replaceable. The public interest, an elusive concept admittedly, has an inevitable role to play in our political system. The elusive concept can sometimes best be identified in emblematic ways, through the presence of a badge or the taking of an oath.

For those less concerned about the historical background of the public-private distinction and its influence on the privatization debate, Parts I and II can be skimmed. Discussing the practical dimensions of privatization starts with Part IlL Parts IV and V offer a variety of legal and policy prescriptions. The Article concludes by observing that all three branches of government must help keep privatization within democratic bounds.

Volume

84

Issue

2

First Page

397

Last Page

470

Publisher

University of North Carolina School of Law

Disciplines

Jurisprudence | Law | Law and Economics | Law and Society | Public Law and Legal Theory | Taxation-Federal

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