75 N.Y.U. L. Rev. 543 (2000)
The Private Role in the Public Governance

handle is hein.journals/nylr75 and id is 559 raw text is: NEW YORK UNIVERSITY
LAW REVIEW

VOLUME 75                        JuNE 2000                        NUMBER 3
ARTICLES
THE PRIVATE ROLE IN
PUBLIC GOVERNANCE
JODY FRiEEMAN*
In this Article, Professor Freeman proposes a conception of governance as a set of
negotiated relationships between public and private actors. Under this view, public
and private actors negotiate over policy making, implementation, and enforcement,
thereby decentralizing the decision-making process. Recognizing die per'asive and
varied roles played by private actors in all aspects of governance, Professor
Freeman challenges the public/private distinction in administrative law and invites a
reconsideration of the traditional administrative law preoccupation with the ac-
countability of public actors. The Article offers theoretical support for the new
conception, drawing on both public choice theory and critical legal stndies to argue
that there is neither a purely private realm, nor a purely public one-only negoti-
ated relationships between public and private actors. Professor Freeman's argu-
ment proceeds through a series of empirical examples that demonstrate the roles
played by private actors in a variety of administrative contexts, including health
* Acting Professor of Law, University of California Los Angeles. B.A., 1985, Stanford
University, LL.B., 1989, University of Toronto; LLM., 1991, SJ.D., 1995, Harvard Univer-
sity, Freeman@law.ucla.edu. I am grateful to many generous colleagues at UCLA and
elsewhere for enormously helpful comments and extraordinary acts of collegiality: Rick
Abel, Michael Asimow, Steve Bainbridge, Ann Carlson, Sharon Connors, Beth Garrett,
Gillian Hadfield, Joel Handler, Bill Klein, Harold Krent, Gillian Lester, Tim Malloy, Tom
McGarity, Mike Meurer, Eric Orts, Ed Rubin, Jim Salzman, Mark Scidenfeld, Clyde
Spillenger, Nancy Staudt, Elizabeth Wehr, Jim Wooten, and Steve Yeazell. I am especially
indebted to Mitu Gulati, who generously shared both ideas and enthusiasm on a daily
basis. The UCLA Junior Group offered a particularly hospitable environment in which to
cultivate these ideas. The article benefited from workshops at DePaul, the University of
Toronto, and SUNY Buffalo. I thank the Academic Senate at UCLA and the Dean's Fund
for financial support. Marc Luesebrink, Darrel Menthe, and the staff at the Hugh and
Hazel Darling Library supplied excellent research assistance. Joanna Wolfe deserves spe-
cial mention for outstanding research assistance and tireless devotion to this project. For
superb administrative support, I thank Ellis Green and Tad Grietzer. I am to blame for
mistakes. This is for my late father, Larry Freeman.
543

Imaged with the Permission of N.Y.U. Law Review

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