Wednesday, December 14, 2011

Review - Delegation of Governmental Power to Private Parties

Delegation of Governmental Power to Private Parties: A Comparative Perspective, by Catherine M. Donnelly (Oxford University Press, 2008); ISBN-10: 0199298246, ISBN-13: 978-0199298242

This is one of the best books I have read about privatization from the standpoint of delegated government power.  The thoroughness of the research is astonishing - the author surveys all relevant court decisions from the U.S. (both state and federal), U.K., and the EU, as well as the leading academic articles and books.  The writing style is very readable, and the author takes a perfectly balanced approach to the issues presented by privatization/outsourcing. It's a major contribution to the field, comprehensive enough to be a reference book that I would use in a number of future article projects.  Here is a quote from the OUP page summarizing it:

Through a comparative analysis of England, the European Union, and the United States, this book considers legal responses to delegation of governmental power to private parties. It is argued that although private delegation has the potential to enhance the efficency and effectiveness of governance, it should not be assumed to have this result. Moreover, private delegation creates risks to democracy, accountability, and human rights. Any legal controls must therefore respond to the challenge of enhancing the potential effectiveness of private delegation, while minimising the risks associated with this phenomenon...The legal responses of the three jurisdictions to private delegation are categorised in a two-fold and functional way: responses which impose controls on the delegator of governmental power, and responses which impose controls on the private delegate of governmental power. 

Catherine Donnelly, author
That is a good overview of the structure of the book.  The upshot, however, is that in the U.S. and U.K., there really are not enough legal controls to prevent abuses in the context of privatization.  When a private firm is running a government service (such as a welfare office or licensing bureau), a citizen with a valid legal complaint often has trouble obtaining any legal recourse - the contractor says that it has no legal duty to the constituents, but only to uphold the terms of its contract, and the agency can often escape liability by saying that the acts were done by a private party, not a state actor.  Even though some courts have recognized that there should be due process concerns when a private party can use the power of the state to infringe on others' rights, usually courts have declined to be the arbiters in this arena, seeing it instead as a legislative-executive problem.  Yet there is also very little political accountability for privatization mishaps, and addressing the delegation problems through the contract terms has so far proved largely unsuccessful.

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