The private life of public law

This Article proposes a new conception of the administrative state that accounts for the vast networks of private agreements that shadow public regulations. The traditional account of the administrative state assigns a limited role to private actors: Firms and interest groups seek to influence regulations, and after the regulations are finalized, regulated firms face a comply-or-defy decision. In recent years, scholars have noted that Private actors play an increasing role in traditional government standard setting, implementation, and enforcement functions. This Article demonstrates that the private role in each of these functions is far greater than others have identified. Furthermore, it argues that only when this private regulation is considered can the accountability and efficacy of the administrative state be judged. Using environmental regulation as an example, the Article examines a wide range of empirical data to demonstrate that public law requirements spawn a vast body of private agreements. These second-order regulatory agreements range from provisions in corporate acquisition agreements between Private firms to "good neighbor agreements" between private firms and nonprofit groups. Second-order agreements concern not only environmental regulation, but worker safety, health care, and other areas. The dynamic regulatory account developed in the Article suggests that second-order agreements alter the pal-ties that have interests in regulatory outcomes, the incentives they face, and the performance of the regulatory regime. The recognition of second-order agreements suggests a new agenda for empirical and theoretical work on the public regulatory measures that will generate the optimal blend of public and private regulation.