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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