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59 Admin. L. Rev. 37 (2007)
The Myth of Privatization

handle is hein.journals/admin59 and id is 45 raw text is: THE MYTH OF PRIVATIZATION CHRIS SAGERS* TABLE OF CONTENTS Introduction ............................................................................................. 37 I. The Existing Privatization Literature and Certain Preliminary Problem s ...................................................................................... 42 A. The Literature as It Exists ..................................................... 43 B. Preliminary Problems Throughout the Literature ................. 48 II. Deconstructing Public and Private ............................................... 56 A. The Public-Private Distinction as a Proposition of Sociology or Positive Law ................................................... 57 B. Markets as Institutional Alternative to Government: The Public-Private Distinction as an Economic Argument ............. 63 III. An Alternative Account of the Macrosocial What and the Historiographical Why; Also, Alas, a Bit of Abject M althusianism .............................................................................. 71 C onclusion ............................................................................................. 77 INTRODUCTION Among the most written-about topics in administrative and constitutional law these days is privatization, an area that in a relatively short time has spawned an immense body of literature. The work has become so prevalent and has so captivated the attention of leading thinkers in these areas that its conception of the nature of governance-its portrait of privatizing arrangements as the key focus of concern in understanding our allegedly changing political institutions-has the potential to define the academic lawyer's very understanding of government. Unfortunately, as it will be the purpose of this Article to show, it is also fairly problematic. * Assistant Professor of Law, Cleveland State University. I welcome all feedback at csagers@law.csuohio.edu. Because working out the ideas in this paper has had a bit of the flavor of a torchless search for the way out of a damp echoing cave, it was possible only with the occasionally searing and immensely appreciated feedback of Ben Barton, Anita Bernstein, Cary Coglianese, Errol Meidinger, Pierre Schlag, Frank Snyder, Paul Verkuil, and Phil Weiser.

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