Public Management’s Problems are Legal Problems: How Law Contributes to Inequity in Contemporary Governance

Abstract

Over the latter half of the twentieth century, legal changes obliged public organizations in the United States to alter and standardize their procedures to provide due process and promote equal protection. Integration of administration into the constitutional order produced two remarkable changes. First, the everyday work of administration uses forms and vocabularies resembling those of law and the court system. Second, adoption of legally mandated due process protections catalyzed a broader values reorientation, yielding practices that promote social equity and public participation. However, as administrative practice became more law-like, partisans and organized interests made new use of legal tactics to bend administrative decision-making toward their own ends. Common patterns of unequal outcomes in the American legal system thus arise, in similar forms, in administrative settings. Law’s problems have thereby become governance problems. This article elucidates these past and current patterns by reading law and society literature alongside that of public administration and public management. In doing so, it shows that these two fields have long developed in parallel and have much to contribute to each other. This article underscores the importance of mutual learning and understanding between the fields of law and society and public administration and management.