Volume 101 - Issue 4 Georgetown Law Journal

Privatization’s Progeny

Privatization’s proponents are branching out. They have traditionally relied on government service contracting to boost efficiency, maximize budgetary savings, enhance unitary control over the administrative state, and reap political dividends. Now, however, these proponents are also blazing newer, bolder paths. They are experimenting with more powerful instruments that offer surer, quicker routes to promote privatization’s aims.

This Article explores how these new instruments uniquely challenge the administrative state, reorienting public programs, reversing longstanding practices, and forcing courts to recalibrate core administrative law doctrines. Specifically, these new instruments enable school districts to “teach to the test,” states to barter away sovereign authority, and presidents to politicize the bureaucracy. They also test the robustness of foundational legal precepts under-girding hard-look review, Chevron and Skidmore deference, and constitutional due process. Ultimately, the emergence of these new instruments reflects the extent to which government today is commingling political and businesslike agendas in ways both liberating and threatening.

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