What is Public? Big Questions Emerging from the Clash of Legal and Policy Paradigms

2020 ◽  
Author(s):  
Cullen C Merritt ◽  
Deanna Malatesta ◽  
Julia L Carboni ◽  
James E Wright ◽  
Sheila Suess Kennedy
Keyword(s):  
Common Ground ◽  
Theory And Practice ◽  
New Governance ◽  
State Action ◽  
The Public ◽  
Goods And Services ◽  
Administrative Framework ◽  
State Actors ◽  
Vantage Points ◽  
State Action Doctrine

Abstract This article draws on three main sources to define the constitutional boundaries for outsourcing public goods and services in the age of new governance: (1) public administration research related to public–private distinctions; (2) Office of Management and Budget (OMB) Circular A-76, federal policy on “inherently governmental” functions; and (3) the State Action Doctrine, the judiciary’s approach for distinguishing state actors from non-state actors for the purpose of redressing constitutional infringements. While these three sources have developed independently, approach the public–private debate from different vantage points, and allow significant ambiguities to remain, we contend that common ground can be leveraged theoretically to derive criteria to resolve many government outsourcing decisions in a way that is efficient and effective. Our main contribution is in providing first steps toward the development of a modern legal and administrative framework that aligns outsourcing theory and practice with the realities of new governance.

scholarly journals Joining Forces against ‘Strike Terrorism’: The Public-Private Interplay in Policing Strikes in Imperial Germany, 1890–1914

2019 ◽  
Vol 49 (4) ◽  
pp. 597-624
Author(s):  
Amerigo Caruso
Keyword(s):  
Political Violence ◽  
Special Focus ◽  
Public And Private ◽  
The Public ◽  
Imperial Germany ◽  
White Collar Workers ◽  
Administrative Framework ◽  
Municipal Police ◽  
State Actors ◽  
Legal Strategies

This article examines the blurred boundaries between public and private repressive practices in Wilhelmine Germany with a special focus on the legal and administrative framework drawn up to redistribute security tasks and delegate the use of violence to non-state actors. While the rapid escalation of political violence in Central and Eastern Europe after 1917 has been widely discussed in the recent historiography, the structure of violence in the pre-war period remains less explored, especially with regard to the public-private interplay in the policing of popular protests. After the first massive strike by Ruhr miners in 1889, the Prussian authorities began to support the formation of semi-private armed protection groups in an effort to tackle ‘strike terrorism’. The idea of privatizing repressive practices arose as a result of widespread fears of social and political disintegration. Yet, although it may seem paradoxical, the precondition for delegating the use of violence to non-state actors was Prussian administrators’ confidence in the state’s solidity and efficiency. The ambivalence in contemporary discourses concerning the vulnerability of the existing social and political order is crucial to explaining why the Prussian authorities implemented strategies for legally distributing arms to those groups that were considered part of the ‘loyal classes’. The mobilization against ‘strike terrorism’ involved not only officially organized armed groups, such as the Zechenwehren, but also more informal or extra-legal strategies such as private use of the municipal police, the distribution of arms to strike-breakers and the militarization of white-collar workers and supervisors.

scholarly journals The Need for Horizontal Application of Fundamental Rights in India with Reference to State Action Doctrine in the Context of Globalisation

2013 ◽  
Vol 2 (1) ◽  
pp. 81-96
Author(s):  
Sanu Rani Paul
Keyword(s):  
Paradigm Shift ◽  
Fundamental Rights ◽  
State Action ◽  
Role Of The State ◽  
Private And Public ◽  
State Actors ◽  
Liberal Approach ◽  
State Action Doctrine ◽  
Fundamental Values

A paradigm shift in the role of the state has taken place with the emergence of private and private public participation in the socio welfare sectors of the economy. These private and public entities through their operations are making unreasonable interference in the lives of people thereby violating their fundamental rights. The judiciary has a significant role to play in protecting and upholding the fundamental rights of the citizens under the Constitution of India. But as far as enforcement of fundamental rights against private or non state actors is concerned, our judiciary is constrained in a set of narrow doctrines evolved from time to time. In the present scenario, an innovative and liberal approach in tune with the spirit and fundamental values of the Constitution is the need of the hour. The present study gives an account of the need for enforcement of fundamental rights in India against non state actors through an expansion of the concept of state action.

scholarly journals An Overview of the Role of Non-State Actors in Preventing and Combatting Corruption in Botswana: Challenges and Opportunities

2016 ◽  
Vol 5 (2) ◽  
pp. 6
Author(s):  
Abiodun Marumo Tito Omotoye
Keyword(s):  
Developmental State ◽  
Economic Crime ◽  
The Public ◽  
Goods And Services ◽  
Public Resources ◽  
Challenges And Opportunities ◽  
State Actors ◽  
Institutional Challenges ◽  
Private Business Sector

<p>Botswana has been lauded, regionally and internationally, for its commitment towards building a capable, democratic and developmental state. However, the country’s national anti-corruption agency, the Directorate on Corruption and Economic Crime (DCEC) has reported an increase in the number and complexity of cases of corruption. The objective of this paper is to assess the role of the non-state actors (NSAs) in fighting corruption in Botswana. This assessment is made by way of providing a description and analysis of the underlying challenges and opportunities confronting NSAs, specifically the private (business) sector, the private media and nongovernmental organisations in preventing and addressing corruption in Botswana. NSAs play a pivotal role in the development of any country by providing goods and services, creating awareness and sensitizing communities on political and socio-economic issues affecting them. Whereas NSAs have a key role to play in fighting corruption by monitoring the use of public resources, educating the public, condemning perpetrators, and contributing towards the implementation of anti-corruption instruments, they are confronted by political, legislative and institutional challenges that hinder their effectiveness in this regard. </p>

Constitutional Limitations

2018 ◽  
Author(s):  
Scott Burris ◽  
Micah L. Berman ◽  
Matthew Penn, and ◽  
Tara Ramanathan Holiday
Keyword(s):  
Public Health ◽  
Supreme Court ◽  
Due Process ◽  
Reproductive Rights ◽  
Court Cases ◽  
Health It ◽  
State Action ◽  
Substantive Due Process ◽  
State Action Doctrine ◽  
Due Process Rights

This chapter describes “due process,” a Constitutional restriction on governmental actions that impact individuals, in the context of public health. It outlines the doctrines of procedural and substantive due process, including the legal tests that courts apply to decide whether individuals’ due process rights have been violated. It uses examples from Supreme Court cases that have defined due process in the context of public health, including those that struggle to define the scope of reproductive rights. It also examines two cases where public health principles were raised as a justification for governmental action: one about involuntary sterilization and one about Ebola. The chapter concludes with a brief discussion of the “state action doctrine” that defines which public health actors may be challenged on due process grounds.

The State Action Doctrine and The Local Government Antitrust Act: The Restructured Public Hospital Model

1988 ◽  
Vol 14 (2-3) ◽  
pp. 171-219
Author(s):  
Theodore N. McDowel ◽  
J. Marbury Rainer
Keyword(s):  
Local Government ◽  
Public Hospital ◽  
The State ◽  
State Action ◽  
Hospital Facility ◽  
Practical Matter ◽  
Antitrust Analysis ◽  
The Impact ◽  
State Action Doctrine ◽  
Public Entity

This Article analyzes the development and complexities of the antitrust state action doctrine and the Local Government Antitrust Act as these doctrines apply to both “municipalities” and private entities. The restructuring of a public hospital is used as a model to facilitate the antitrust analysis. The restructuring model, which typically involves the leasing of a hospital facility by a public entity to a private nonprofit corporation, offers the unique opportunity to compare the different standards employed under the state action doctrine and the Local Government Antitrust Act. As a practical matter, the Article provides a framework for a public hospital to evaluate the impact of corporate restructuring on its antitrust liability exposure and to develop strategies to minimize antitrust risks.

Notes on Competition and Justum Pretium Theory and Practice in Medieval Italy

2018 ◽  
Vol 63 (3) ◽  
pp. 330-349 ◽  
Author(s):  
Marco Claudio Corradi
Keyword(s):  
European Union ◽  
Cognitive Biases ◽  
Theory And Practice ◽  
Market Mechanisms ◽  
Medieval Italy ◽  
Goods And Services ◽  
Pricing Theory ◽  
Market Variables ◽  
The One ◽  
Capitalist Spirit

Medieval Italian Comuni are often considered as one of the cradles of the modern capitalist spirit. Comuni introduced economic legislation in an attempt to counteract restrictions to competition on the one hand and to control the price of certain goods and services on the other. Price control of basic commodities was often motivated by reasons of public order – such as preventing commoners’ riots. Despite some loose analogies with the modern European Union competition law approach to pricing – namely in the area of excessive pricing – the Italian medieval Comuni pricing theory and practice substantially differed from the modern European Union one. Medieval theory struggled in reconciling market mechanisms with costs analysis and missed the distinction between efficiency and distribution. Moreover, medieval Comuni market variables were substantially divergent from the modern European ones. Despite Comuni being the wealthiest areas in Europe in those days, their consumers had significantly lower buying power, they were affected by different cognitive biases than modern consumers and they were highly segmented from a gender perspective. Medieval producers, that is artisans, did not enjoy the degree of market power that characterizes modern oligopolists. Artisans produced goods for merchants who were the main promoters of trade and economic development. Merchants often succeeded in squeezing artisans’ profits, granting consumers lower prices for manufactured goods, at times also thanks to free trade policies pursued by Comuni administrations.

Mumtaz Bibi's broken heart

2009 ◽  
Vol 46 (1) ◽  
pp. 105-130 ◽  
Author(s):  
Rohit De
Keyword(s):  
South Asian ◽  
Women's Rights ◽  
Common Ground ◽  
Islamic Law ◽  
Muslim Women ◽  
Women’S Rights ◽  
Legislative Process ◽  
The Public ◽  
Traditional Practitioners ◽  
Women In India

This article investigates the formation of a political consensus between conservative ulama, Muslim reformers, nationalist politicians and women's organisations, which led to the enactment of the Dissolution of Muslim Marriages Act in 1939. The Act was a radical piece of social legislation that gave South Asian Muslim women greater rights for divorce than those enjoyed by other women in India and Britain. Instead of placing women's rights and Islamic law as opposed to each other, the legislation employed a heuristic that guaranteed women's rights by applying Islamic law, allowing Muslim politicians, ulama and women's groups to find common ground on an Islamic modernity. By interrogating the legislative process and the rhetorical positions employed to achieve this consensus, the paper hopes to map how the women's question was being negotiated anew in the space created in the legislatures. The legislative debate over family law redefined the boundaries of the public and the private, and forced nationalists to reconsider the ‘women's question’. The transformation of Islamic law through secular legislation also gave greater licence to the courts in their interpretation, and widened the schism between traditional practitioners of fiqh and modern lawyers.

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