Emory Law Journal

Volume 63Issue 2
The 2013 Randolph W. Thrower Symposium, Privatization: Managing Liability and Reassessing Practices in Local and International Contexts
Thrower Symposium Articles

Privatization and Its Discontents

Alex Kozinski, Andrew Bentz | 63 Emory L.J. 263 (2013)

The question of what government should control exclusively and what it should delegate to private entities is as old as government itself. Though privatization is nothing new, it’s becoming an increasingly important issue as government gets bigger and its functions multiply. As the pressure to privatize increases, we must be mindful of its advantages and pitfalls.

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Public–Private Partnerships and Termination for Convenience Clauses: Time for a Mandate

Julie A. Roin | 63 Emory L.J. 283 (2013)

For better or worse, and for richer or poorer, the line between government and private provision of goods and services is disappearing.

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Having It Both Ways: How Charter Schools Try to Obtain Funding of Public Schools and the Autonomy of Private Schools

Preston C. Green III, Bruce D. Baker, Joseph O. Oluwole | 63 Emory L.J. 303 (2013)

Since 1992, forty-two states and the District of Columbia have enacted legislation for charter schools. As of December 2011, there were 5,700 charter schools educating 1.9 million students. Charter schools are characterized as public schools that receive autonomy from a variety of rules and regulations that traditional public schools must follow. In exchange for this increased autonomy, charter schools are accountable to the requirements that are established in the charter. Failure to satisfy those requirements could result in the closing of the school.

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Prison Accountability and Performance Measures

Alexander Volokh | 63 Emory L.J. 339 (2013)

A few decades of comparative studies of public vs. private prison performance have failed to give a strong edge to either sector in terms of quality. That supposed market incentives haven’t delivered spectacular results is unsurprising, since, by and large, market incentives haven’t been allowed to work: outcomes are rarely measured and are even more rarely made the basis of compensation, and prison providers are rarely given substantial flexibility to experiment with alternative models.

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Regulating the Privatized Security Industry: The Promise of Public/Private Governance

Laura A. Dickinson | 63 Emory L.J. 417 (2013)

As governments around the world increasingly turn to contractors to provide government services in the sphere of military and foreign affairs, significant problems of accountability arise. Traditional public governmental mechanisms of regulation and accountability, as well as accountability through litigation, are often inadequate or unavailable. International legal instruments similarly offer only minimal enforcement of human rights or other public-regarding norms, and in any event they may not always apply to nonstate actors. As a result, we must find new forms of public/private governance and oversight in this rapidly expanding area of military and quasi-military operations.

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Comments

No Longer a Paper Tiger: The EEOC and Its Statutory Duty to Conciliate

Elizabeth Dunn | 63 Emory L.J. 455 (2013)

This Comment argues that the deferential standard of review is inadequate to protect private employers from the EEOC’s potential abuse of its statutory duty. Rather, the stringent standard is the proper standard, and it is consistent with the text, purpose, legislative history, and jurisprudence of Title VII.

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Tilted Scales of Justice? The Consequences of Third-Party Financing of American Litigation

Joshua G. Richey | 63 Emory L.J. 489 (2013)

Third-party financing of commercial litigation is a relatively new phenomenon in the United States. Recently, there has been a substantial increase in the amount of money that third parties have invested in commercial lawsuits. Many new investment management groups have been formed in cities such as New York, London, and Sydney looking to finance the endless stream of American litigation. These groups are for-profit entities that fund all or a portion of a plaintiff’s legal fees in exchange for a share of any recovery that might result from the underlying lawsuit. The third-party litigation funders, as they are often called, put their “skin in the game” by risking the loss of their investment if the underlying claim is unsuccessful. The calculated risk these third-party litigation funders take has systematically resulted in astronomical returns for the companies and their investors.

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