November 30, 2012 3:30 pm Philosophy Conference Room
"Privatization and the Elusive Employee-Contractor Distinction"
Does it matter whether government services are managed publicly (by state employees) or privately (by contractors)? Yes, for all sorts of empirical reasons. Chiefly, we reasonably expect and observe that public and private providers will act differently and otherwise affect the real world. But is there any inherent, normatively relevant difference between employee- and contractor-managed services, independent of such data-driven concerns? No. The state is an abstract set of relationships; therefore, to act, the state must use agents of some sort. Both employees and private contractors are private individuals; both do things for the state in exchange for money; both have private purposes, as well as the discretion to follow those purposes sometimes, even contrary to the desires of the state. Private contractors can be unaccountable, but so can public employees; private contractors can lack legitimacy in the eyes of the public; but so can public employees. The extent to which the public and private sector differ is an empirical, contingent question. It makes sense to favor or oppose privatization, and to treat the public and private sectors differently in the law, but the reasons for doing so must be based not on any inherent difference between sectors but rather on the empirical—and often contested—differences in how the two sectors will act in the real world.
Alexander Volokh is assistant professor of Emory University Law School. Volokh clerked for Judge Alex Kozinski of the Ninth Circuit and for Supreme Court Justices Sandra Day O’Connor and Samuel Alito. His interests include law and economics, administrative law and the regulatory process, environmental law and policy, and legal history. His current research topics include the private management of government services, medieval law, judicial decisionmaking and statutory interpretation.
Alexander Volokh's Website: http://www.law.emory.edu/faculty/faculty-profiles/alexander-volokh.html