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The Private Life of Public Law

dc.contributor.authorVandenbergh, Michael P.
dc.identifier.citation105 Columbia Law Review 2029 (2005)en_US
dc.descriptionarticle published in a law reviewen_US
dc.description.abstractThis Article proposes a new conception of the administrative regulatory state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: private firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that private actors play an increasing role in the traditional government standard setting, implementation and enforcement functions. This Article demonstrates that the private role in each of these regulatory functions is far greater than others have identified. Furthermore, the Article argues that only when this private regulation is considered can the accountability and efficacy of the administrative state be judged. Using environmental regulation as an example, the Article examines a wide range of empirical data to demonstrate that public law requirements spawn a vast body of private agreements. These second-order agreements range from corporate acquisition and credit agreements between private firms to "good neighbor agreements" and other agreements between private firms and non-profit groups. Second-order agreements often concern not only environmental regulation, but labor, worker safety, health care and other regulatory areas. The Article shows that second-order agreements alter the types of parties that have interests in regulatory outcomes, the incentives they face, and the performance of the regulatory regime. The recognition of second-order agreements thus suggests a new agenda for empirical and theoretical work on the public regulatory measures that will generate the optimal blend of public and private regulation.en_US
dc.format.extent1 PDF (69 pages)en_US
dc.publisherColumbia Law Reviewen_US
dc.subjectprivate agreementsen_US
dc.subjectprivate governanceen_US
dc.subjectprivate regulationen_US
dc.subjectcorporate transactionsen_US
dc.subject.lcshadministrative lawen_US
dc.subject.lcshenvironmental lawen_US
dc.titleThe Private Life of Public Lawen_US

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