Administrative-Law-Like Obligations on Private[ized] Entities

Privatization is often promoted as a cure for many of the problems of government. In this Article, Professor Beermann argues that the effect of privatization is likely to be muted by the fact that several related phenomena have, in recent years, reduced the differences between government and the private sector, especially when privatization is involved. First, private entities are often compelled to make public or provide to government a great deal of information about themselves, much as the Freedom of Information Act and related statutes require transparency in government. Second, discovery in litigation subjects a great deal of private information to disclosure, a fact that has become more important in recent years as the bases of potential liability have increased. Third, the amount of regulation of private entities has increased markedly, which subjects a great deal of previously private activity to government scrutiny and examination in litigation. Fourth, regulation is often enhanced when privatization is involved. Privatization and deregulation usually come with strings attached under which private entities are required to comply with governmentally prescribed standards of various forms and degrees of stringency. The lesson Professor Beermann urges to be drawn from these factors is that absent significant across-the-board deregulation, privatization is unlikely to achieve the significant effects promised by its advocates