2000] CONTRACTING STATE 163
ecutive agencies across the board, streamlined bureaucracies
34
through a variety of measures, and sought to promote regulatory in-
novation in the form of consensus-based decisionmaking and public-
private partnerships.
35
As both a rhetorical and a practical matter,
these measures invite increased reliance on the private sector.
This combination of events—contracting out, devolution, and pub-
lic sector reform—has created an environment in which public-
private contract seems likely to flourish. And although commentators
have debated the merits of privatization from an economic and politi-
cal perspective
36
and sought to identify the conditions under which
privatization will produce efficiency gains,
37
the implications of priva-
tization for administrative law remain unclear. At first blush, con-
tractual instruments might strike administrative law scholars as un-
interesting or unproblematic. They do not appear to disrupt settled
categories of agency action, challenge established explanations of the
administrative process, or impugn traditional justifications for judi-
cial review.
38
However, government-private contracts have the poten-
34. See The Federal Workforce Restructuring Act of 1994, Pub. L. No. 103-226, 108
Stat. 111 (1994) (codified as amended in scattered sections of 5 U.S.C.) (requiring a redu c-
tion of 272,900 civilian jobs by the end of fiscal year 1999). The federal civilian work force
has decreased from 2.16 million full-time equivalents (FTE) in 1993 to 1.8 million FTEs in
1998, a decrease of 360,000 FTEs. See OFFICE OF MANAGEMENT & BUDGET, ANALYTICAL
PERSPECTIVES, BUDGET OF THE UNITED STATES GOVERNMENT, FISCAL YEAR 2000, at 247
(1999) [hereinafter ANALYTICAL PERSPECTIVES], available at http://w3.access.gpo.gov/
usbudget/fy2000/pdf/spec.pdf.
35. See, e.g., OFFICE OF THE VICE PRESIDENT, ACCOMPANYING REPORT OF THE
NATIONAL PERFORMANCE REVIEW: ENVIRONMENTAL PROTECTION AGENCY 23-27, 51-52
(1993) [hereinafter EPA ACCOMPANYING REPORT] (companion document to VICE
PRESIDENT AL GORE, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS
BETTER AND COSTS LESS (1993)), http://www.npr.gov/library/reports.epa.html; VICE
PRESIDENT AL GORE, FROM RED TAPE TO RESULTS: CREATING A GOVERNMENT THAT WORKS
BETTER AND COSTS LESS: REPORT OF THE NATIONAL PERFORMANCE REVIEW passim (1993),
http://www.npr.gov/library/nprrpt/annrpt/redtpe93/index.html.
36. See,e.g., Andrei Shleifer, State Versus Private Ownership, J. ECON. PERSP., Fall
1998, at 133, 141-44 (1998) (analyzing politics of government ownership and privatization
and noting that political considerations not only strengthen the case for privatization, but
in fact drive the decision to privatize); see also DONAHUE, supra note 2, at 11-12 (arguing
that the values of efficiency and accountability of public and private arrangements in “o r-
ganizational architecture” should be reorganized in a way that will best deliver public
goods and services). Privatization does not guarantee accountability; however, in some
cases, private ownership has reduced access to information that was more easily available
under public ownership. See C. Graham & T. Prosser, “Rolling Back the Frontiers”? The
Privatisation of State Enterprises, in A READER ON ADMINISTRATIVE LAW 63, 80-86 (D.J.
Galligan ed., 1996); see also HANDLER, supra note 5, at 86-90 (discussing public-private
contracts that lack competition and cause a decrease in efficiency and accountability).
37. See, e.g., DONAHUE, supra note 2, at 56-78.
38. Much administrative law scholarship consists of debates over statutory interpre-
tation and standards of judicial review of agency action. See, e.g., Colin S. Diver, Statutory
Interpretation in the Administrative State, 133 U. PA. L. REV. 549 (1985); Richard J. Pierce,
Jr., Chevron and Its Aftermath: Judicial Review of Agency Interpretations of Statutory Pro-
visions, 41 VAND. L. REV. 301 (1988). Another significant body of administrative law con-
cerns itself with the advantages and disadvantages of legislative controls, both formal and