2017] THE HUMAN SIDE OF PUBLIC-PRIVATE PARTNERSHIPS 885
and fledgling industries trying to take hold, Congress enacted a plethora of
new statutes, created independent agencies, and imbued these agencies with
the power to shape and enforce pragmatic industrial policies.3 These agencies
represented more than a mere iteration of traditional executive power:
indeed, as one of the primary architects of the New Deal, James Landis,
observed, the administrative process conceived during this era granted
agencies the “full ambit of authority necessary . . . in order to plan, to
promote, and to police.”4
Times have changed. Many if not most of the monopolistic and fledgling
domestic industries that Landis described over 75 years ago have evolved into
complex, decentralized enterprises, often multinational in scope. Most New
Deal agencies continue to perform some regulatory functions, but market
approaches to regulation have replaced many traditional command-and-
control formulations.5 More important, globalization has embedded itself
into the fabric of contemporary society through channels opened, in large
part, by the neoliberalization of global markets. Technology has greatly
enhanced the free flow of capital around the world.6
Transnational corporations can make private “production, financ[ing],
and investment” decisions relatively free of direct state involvement and move
“from location to location” without entrenching in local politics or exposing
themselves to much local regulation.7
Neoliberalism, with its deregulatory bent and its emphases on free trade
and open markets, has typified the “global era” of administrative law that first
emerged in the 1980s.8 A mainstay of this era has been outright deregulation
wherever possible, or the displacement of traditional governmental
regulation with market approaches where deregulation is not possible. Part
3. See Jaffe, supra note 1, at 321.
4. JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 15 (1938).
5. The environmental and health-and-safety era of regulation, beginning in the late
1960s, added another substantial regulatory layer to what had been created in the New Deal.
ALFRED C. AMAN, JR., THE DEMOCRACY DEFICIT: TAMING GLOBALIZATION THROUGH LAW REFOR M
6. “[T]oday’s financial markets are globalizing rather than internationalizing . . . since, for
instance, the movement of capital has largely become independent of the sovereign control of state
agencies.” Jost Delbrück, Globalization of Law, Politics, and Markets—Implications for Domestic Law—A
European Perspective, 1 IND. J. GLOBAL LEGAL STUD. 9, 10 (1993); see also David Albrecht, More on the Free
Flow of Capital and IFRS, SUMMA (Mar. 7, 2009), http://profalbrecht.wordpress.com/2009/03/07/
more-on-the-free-flow-of-capital-and-ifrs (“Current economic ort hodoxy is based on the
internationalization of financial markets and free flow of capital across any and all national borders.”).
7. See Alfred C. Aman, Jr., Proposals for Reforming the Administrative Procedure Act:
Globalization, Democracy and the Furtherance of a Global Public Interest, 6 IND. J. GLOBAL LEGAL STUD.
397, 408 (1999).
8. Id. at 400 (“Deregulation and privatization [have been] widespread responses to the
global economy throughout the West. On some occasions, deregulation in the United States
involved the wholesale substitution of the market for regulation . . . . In other instances,
deregulation involved the use of the market as a regulatory tool . . . .” (footnote omitted)).