Hostname: page-component-77c89778f8-7drxs Total loading time: 0 Render date: 2024-07-20T13:26:12.378Z Has data issue: false hasContentIssue false
  • English
  • Français

Infusing Public Law into Privatized Welfare: Lawyers, Economists, and the Competing Logics of Administrative Reform

Published online by Cambridge University Press:  01 January 2024

Avishai Benish  and
Asa Maron
Get access Rights & Permissions [Opens in a new window]

Abstract

Along with the trend toward “New Public Management” (NPM) and replacing the legal culture of public bureaucracies with market logic through privatization, we are also witnessing instances of “publicization,” the application of public law norms and mechanisms to privatized services. The article explores the role of government lawyers and economists in the dynamics of these administrative reforms. Using a detailed case study of welfare-to-work reform in Israel, it shows that the reconstruction of decision making and accountability patterns under NPM was the result of competing efforts by these professional groups to appropriate the “privatized state” to accord with their own institutional logics and interests. While economists advanced a “market” logic, lawyers tried to reproduce the logic of “law” in the post-bureaucratic setting. The study demonstrates how eventually public law norms were re-infused into privatized welfare as a result of the increasing institutional power of the lawyers in the regulatory space, along with wider political and social support for the entrenched legalistic mechanisms of the administrative state. However, in addition to the “battle of norms” between lawyers and economists, there were also concessions that led to the redrawing of the boundaries of public law along more functional, rather than formal, lines.

Type
Articles
Information
Law & Society Review , Volume 50 , Issue 4 , December 2016 , pp. 953 - 984
Copyright
© 2016 Law and Society Association.

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

The authors would like to thank Michael Adler, Sharon Gilad and Ronen Mandelkern for their insightful comments on an earlier draft of this article, as well as the editors and the anonymous reviewers for their valuable and helpful comments. The article also benefited tremendously from discussions with Tomas Burke, Lauren Edelman, Malcolm Feeley, Liora Israël, Jérôme Pélisse, and Rachel Stern. Avishai Benish would like to thank the Center for the Study of Law & Society and the Institute for Jewish Law and Israeli Studies at the Faculty of Law, University of California, Berkeley, for greatly facilitating the writing of the manuscript by providing an intellectually inspiring environment and impeccable hospitality during his term as a visiting professor in 2014–15. Asa Maron would like to thank the Israel Institute and the Taube Center for Jewish Studies at Stanford University for their generous support, and the Department of Sociology at Stanford University for their outstanding hospitality.

References

Adler, Michael (2003) “A Socio-Legal Approach to Administrative Justice,” 25 Law and Policy 323–52.CrossRefGoogle Scholar
Adler, Michael (2006) “Fairness in Context,” 33 J. of Law and Society 615–38.CrossRefGoogle Scholar
Adler, Michael (2010) “Understanding and Analysing Administrative Justice,” in Adler, M., ed., Administrative Justice in Context. Portland, Oregon: Hart Publishing Oxford.Google Scholar
Alford, Robert R., & Friedland, Roger (1985) Powers of Theory: Capitalism, the State and Democracy. Cambridge: Cambridge Univ. Press.CrossRefGoogle Scholar
Aman, Alfred C. (2005) “Privatization, Prisons, Democracy, and Human Rights: The Need to Extend the Province of Administrative Law,” 12 Indiana J. of Global Legal Studies 511–50.CrossRefGoogle Scholar
Barnes, Jeb, & Burke, Thomas F. (2015) How Policy Shapes Politics: Rights, Courts, Litigation and the Struggle over Injury Compensation. New York: Oxford Univ. Press.CrossRefGoogle Scholar
Ben-Bassat, Avi, & Dahan, Momi (2006) The Balance of Power in the Budgeting Process. Jerusalem: The Israeli Democracy Institute.Google Scholar
Benish, Avishai (2010) “Re-bureaucratizing Welfare Administration,” 84 Social Services Rev. 77–101.CrossRefGoogle Scholar
Benish, Avishai (2014) “Outsourcing, Discretion, and Administrative Justice: Exploring the Acceptability of Privatized Decision Making,” 36 Law and Policy 113–33.CrossRefGoogle Scholar
Benish, Avishai, & Levi-Faur, David (2012) “New Forms of Administrative Law in the Age of Third-Party Government,” 90 Public Administration 886–900.CrossRefGoogle Scholar
Brodkin, Evelyn (2007) “Bureaucracy Redux: Management Reformism and the Welfare State,” 17 J. of Public Administration Research and Theory 1–17.CrossRefGoogle Scholar
Brodkin, Evelyn, & Lipsky, Michael (1983) “Quality Control in AFDC as an Administrative Strategy,” 57 Social Services Rev. 1–34.CrossRefGoogle Scholar
Carruthers, Bruce G. (1994) “When is the State Autonomous? Culture, Organization Theory, and the Political Sociology of the State,” 12 Sociological Theory 19–44.CrossRefGoogle Scholar
Clarke, John H., & Newman, Janet E. (1997) The Managerial State: Power, Politics and Ideology in the Remaking of Social Welfare. London: Sage.Google Scholar
Collier, David (2011) “Understanding Process Tracing,” 44 Political Science & Politics 823–30.CrossRefGoogle Scholar
Community Advocacy (2006) “Legal Aid for the Welfare to Work Program Participants in the Administrative Tribunals,” Letter from Community Advocacy to the Ministry of Justice, October 27, 2005.Google Scholar
Dezalay, Yves, & Garth, Bryant G. (2002) The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States. Chicago: Univ. of Chicago Press.CrossRefGoogle Scholar
Dezalay, Yves, & Garth, Bryant G., eds. (2011) Lawyers and the Rule of Law in an Era of Globalization. New York: Routledge.CrossRefGoogle Scholar
Department of Legal Aid (2010) Report on the Welfare-to-Work Program. Ministry of Justice, Jerusalem, Israel.Google Scholar
Diller, Matthew (2000) “The Revolution in Welfare Administration: Rules, Discretion, and Entrepreneurial Government,” 75 New York Univ. Law Rev. 1121–220.Google Scholar
DiMaggio, Paul J., & Powell, Walter W. (eds.) (1991) The New Institutionalism in Organizational Analysis. Chicago: Univ. of Chicago Press.Google Scholar
Edelman, Lauren B. (2004) “The Legal Lives of Private Organizations,” in Sarat, A. ed., The Blackwell Companion to Law and Society. Maldan: Blackwell Publishing, 231–52.Google Scholar
Edelman, Lauren B., et al. (2001) “Diversity Rhetoric and the Managerialization of Law,” 106 American J. of Sociology 1589–641.CrossRefGoogle Scholar
Feeley, Malcolm M. (2014) “The Unconvincing Case Against Private Prisons,” 89 Indiana Law J. 1401–36.Google Scholar
Freeman, Jody (2003) “Extending Public Law Norms Through Privatization,” 116 Harvard Law Rev. 1285–352.CrossRefGoogle Scholar
Friedland, Roger, & Alford, Robert R. (1991) “Bringing Society Back In: Symbols, Practices and Institutional Contradictions,” in DiMaggio, P., & Powell, W.W., eds., The New Institutionalism in Organizational Analysis. Chicago: Univ. of Chicago Press.Google Scholar
Friedman, Lawrence (1986) “Legal culture and the Welfare State,” in Tuebner, G. ed., Dilemmas of Law in the Welfare State. Berlin: Walter de Gruyter.Google Scholar
Fourcade, Marion (2006) “The Construction of a Global Profession: The Transnationalization of Economics,” 112 American J. Of Sociology 145–94.CrossRefGoogle Scholar
Fourcade-Gourinchas, Marion, & Babb, Sarah L. (2002) “The Rebirth of the Liberal Creed: Paths to Neoliberalism in Four Countries,” 108 American J. of Sociology 533–79.CrossRefGoogle Scholar
Gadish, Ya'acov (2004) Report of the Public Committee for the Approval of the Economic Principles of Contracting with Corporations for the Operation of Employment Centers. Jerusalem.Google Scholar
Gilad, Sharon (2014) “Beyond Endogeneity: How Firms and Regulators Co-Construct the Meaning of Regulation,” 36 Law & Policy 134–64.CrossRefGoogle Scholar
Gilbert, Neil, & Gilbert, Barbara (1989) The Enabling State: Modern Welfare Capitalism in America: Modern Welfare Capitalism in America. New York: Oxford Univ. Press.Google Scholar
Halliday, Simon, & Scott, Colin (2010) “Administrative Justice,” in Cane, P., & Kritzer, H., eds., The Oxford Handbook of Empirical Legal Research. Oxford: Oxford Univ. Press.Google Scholar
Handler, Joel F. (2004) Social Citizenship and Workfare in the United States and Western Europe: The Paradox of Inclusion. Cambridge: Cambridge Univ. Press.CrossRefGoogle Scholar
Hood, Christopher (1991) “A Public Management for All Seasons?” 69 Public Administration 3–19.CrossRefGoogle Scholar
Israel Academy of Sciences and Humanities [IASH] (2007) Recommendations regarding the Future of Israel's Welfare to Work Program. Jerusalem, Israel: IASH.Google Scholar
Jewell, Christopher J. (2007) Agents of the Welfare State: How Caseworkers Respond to Need in the United States, Germany, and Sweden. New York: Palgrave Macmillan.CrossRefGoogle Scholar
Kagan, Robert A. (1978) Regulatory Justice: Implementing a Wage Price Freeze. New York: Russell Sage Foundation.Google Scholar
Kagan, Robert A. (2001) Adversarial Legalism: The American Way of Law. Cambridge, MA: Harvard Univ. Press.CrossRefGoogle Scholar
Kagan, Robert A. (2010) “The Organization of Administrative Justice Systems: The Role of Political Distrust,” in Adler, M., ed., Administrative Justice in Context. Oxford: Hart Publishing.Google Scholar
Krygier, Martin (2002) “Philip Selznick, Normative Theory and the Rule of Law,” in Kagan, R., Krygier, M., & Winston, K., eds., Legality and Community: On the Intellectual Legacy of Philip Selznick. New York: Rowman and Littlefield.Google Scholar
Lebaron, Frédéric (2001) “Economists and the Economic Order: The Field of Economists and the Field of Power in France,” 3 European Societies 91–110.CrossRefGoogle Scholar
Lens, Vicki (2005) “Bureaucratic Disentitlement After Welfare Reform: Are Fair Hearings the Cure?” 12 Georgetown J. On Poverty Law and Policy 3–54.Google Scholar
Lens, Vicki (2013) “Redress and Accountability in US Welfare Agencies,” in Brodkin, E. Z., & Marston, G., eds., Work and the Welfare State. Washington, DC: Georgetown Univ. Press.Google Scholar
Levi-Faur, David (2005) “The Global Diffusion of Regulatory Capitalism,” 598 Annals of the American Academy of Political and Social Science 12–32.CrossRefGoogle Scholar
Levitt, Steven D., and Dubner, Stephen J. (2009) Freakonomics: A Rogue Economist Explores the Hidden Side of Everything. New York: Harper Colins Publishers.Google Scholar
Lewicki, Roy J. and Wiethoff, Carolyn (2000) “Trust, Trust Development, and Trust Repair,” in Deutsch, M., & Coleman, P. T., eds., The Handbook of Conflict Resolution: Theory and Practice. San Francisco: Jossey-Bas Publishers, 86–107Google Scholar
Maman, Daniel, & Rosenhek, Zeev (2011) The Israeli Central Bank: Political Economy, Global Logics and Local Actors. London: Routledge.CrossRefGoogle Scholar
Mandelkern, Ronen (2015) “What made Economists so Politically Influential? Governance-related Ideas and Institutional Entrepreneurship in the Economic Liberalisation of Israel and Beyond,” 20 New Political Economy 1–18CrossRefGoogle Scholar
Maron, Asa (2014) “Activation via Intensive Intimacies in the Israeli Welfare-to-Work Program: Applying a Constructivist Approach to the Governance of Institutions and Individuals,” 46 Administration & Society 87–111.CrossRefGoogle Scholar
Maron, Asa, & Helman, Sara (2015) “Unravelling the Politics of Activation Reforms: Exploring the Unusual Israeli Trajectory,” Social Policy & Administration. doi: 10.1111/spol.12171.Google Scholar
Mashaw, Jerry, L. (1983) Bureaucratic Justice. New Haven, CT: Yale Univ. Press.Google Scholar
Melnick, R. Shep. (1983) Regulation and the Courts: The Case of the Clean Air Act. Washington, DC: Brookings Institution Press.Google Scholar
Melnick, R. Shep. (1993) Between the Lines: Interpreting Welfare Rights. Washington, DC: Brookings Institution Press.Google Scholar
Meyer, John, & Rowan, Brian (1977) “Institutionalized Organizations: Formal Structure as Myth and Ceremony,” 83 American Journal of Sociology 340–63.CrossRefGoogle Scholar
Minow, Martha (2003) Partners, Not Rivals: Privatization and the Public Good. Boston, MA: Beacon Press.Google Scholar
Mosher, Frederick C. (1978) “Professions in Public Service,” Public Administration Rev 144–50.CrossRefGoogle Scholar
Mulgan, Richard (2000) “Comparing Accountability in the Public and Private Sectors,” 59 (1) Australian J. Of Public Administration 87–97.CrossRefGoogle Scholar
Neal, David, & Kirp, David (1986) “The Allure of Legalization Reconsidered: The Case of Special Education,” in Kirp, D., & Jensen, D., eds., School Days, Rule Days: The Legalization and Regulation of Education. New York: Falmer Press.Google Scholar
Nonet, Philippe (1969) Administrative Justice. New York: Russell Sage Foundation.Google Scholar
Osborne, David, & Gaebler, Ted (1992) Reinventing Government: How the Entrepreneurial Spirit Is Transforming Government. Reading MA: Addison-Wesley Publishing Company.Google Scholar
Program's Regulatory Agency (2006) “Making Sanctioning Decision and Other Substantial Participant-Related Decisions”, Letter of Head of the Regulatory Agency to the contractors, January 31 2006.Google Scholar
Program's Regulatory Agency (2009) Operating Manual (“Procedures Book”) (updated January 2009). The Ministry of Industry, Trade and Employment.Google Scholar
Prosser, Tony (2000) “Public Service Law: Privatization's Unexpected Offspring,” Law and Contemporary Problems 63–82.CrossRefGoogle Scholar
Rabbis for Human Rights & the Mizrahi Democratic Rainbow-New Discourse. [RHR and MDRND] (2008) Failures of the Israeli Wisconsin Plan and Alternative Suggestions. Tel-Aviv, Israel: MDRND.Google Scholar
Rapaport, Meiron (2006) “Work Deception,” Haaretz March 24.Google Scholar
Rosenbloom, David H., & Piotrowski, Suzanne J. (2005) “Outsourcing the Constitution and Administrative Law Norms,” 35 American Review of Public Administration 103–21.CrossRefGoogle Scholar
Selznick, Philip (1969) Law, Society and Industrial Justice. New York: Russell Sage Foundation.Google Scholar
Simon, William H. (1983) “Legality, Bureaucracy, and Class in the Welfare System,” 92 Yale Law Journal 1198–269.CrossRefGoogle Scholar
Skocpol, Theda (1985) “Bringing the State Back In: Strategies of Analysis in Current Research,” in Evans, P.B., Rueschemeyer, D., & Skocpol, T., eds., Bringing the State Back in, Cambridge: Cambridge Univ. Press.Google Scholar
Stewart, Richard B. (1975) “Reformation of American Administrative Law,” 88 Harvard Law Rev 1667–813.CrossRefGoogle Scholar
Suchman, Mark C., & Edelman, Lauren B. (1996) “Legal rational Myths: The New Institutionalism and the Law and Society Tradition,” 21 Law & Social Inquiry 903–41.CrossRefGoogle Scholar
Talesh, Shauhin A. (2009) “The Privatization of Public Legal Rights: How Manufacturers Construct the Meaning of Consumer Law,” 43 Law & Society Review 527–62.CrossRefGoogle Scholar
Talesh, Shauhin A. (2015) “Rule-Intermediaries in Action: How State and Business Stakeholders Influence the Meaning of Consumer Rights in Regulatory Governance Arrangements,” 37 Law & Policy 1–31.CrossRefGoogle Scholar
Tamir, Yossef (2000) Recommendations of the Committee for the Reform of the Policy towards Long Term Unemployed Recipients of Subsistence Allowances - Interim Report. Jerusalem.Google Scholar
The State Comptroller (2007) Report on Certain Aspects of the ‘Wisconsin Plan’. Jerusalem: The State Comptroller.Google Scholar
Thornton, Patricia, Lounsbury, Michael, & Ocasio, William (eds.) (2012) The Institutional Logics Perspective: A New Approach to Culture, Structure, and Process, Oxford, UK: Oxford University Press.CrossRefGoogle Scholar
Thornton, Patricia H., & Ocasio, William (2008) “Institutional Logics,” 840 The Sage Handbook of Organizational Institutionalism, CA: Sage, 99–128CrossRefGoogle Scholar