The University of Colorado at Boulder Law School

Scholars have developed a significant literature exploring the work of deal lawyers, with the essential insight that attorneys acting as transaction-cost engineers have unique potential to add to the overall value of deals. This value-creation literature has traditionally made two foundational assumptions about the role of the state in transactional law. First, scholars have assumed that regulation is essentially irrelevant to transacting—that from the deal lawyer’s perspective, the government is a factor only to the extent that the state will enforce private agreements. Second, scholars have assumed that private parties uniformly view public policy as a constraint in the realm of compliance—that from the deal-lawyer’s perspective, clients are indifferent, if not hostile, to regulatory goals. The first assumption is the subject of recent scholarship convincingly arguing that regulatory arbitrage should be added to the picture of deal lawyers as transaction-cost engineers. The second assumption, however, has gone unchallenged and is the focus of this Article. Although the value-creation literature envisions a monolithic orientation toward the state, in practice, partnerships that engage the private sector in advancing a variety of public goals represent both a significant sector of the economy and one of the central contemporary approaches to policy by federal, state, and local governments. Deal lawyers are thus increasingly called upon not only to reduce transaction costs and leverage regulatory constraints, but also to manage a complex alignment of interests between private means and public ends. In short, lawyers in public-private transactions perform what this Article calls regulatory translation—transmogrifying the often abstract goals of public policy into the concrete mechanisms of private ordering. This Article makes two primary contributions to the literature. First, it identifies an increasingly important transactional context largely ignored by scholars investigating the work of deal lawyers. Second, the Article gives a normative theoretical grounding for that work, a grounding that has the potential to enhance the advantages and mute the problems associated with public-private partnerships. Ultimately, lawyers in this context can create value in the broadest sense of the word, and there are lessons in this for deal lawyers in all transactions.

After decades of confusion, the Supreme Court is finally beginning to bring clarity to the law of regulatory takings. In the process, the Court is elevating a previously submerged theme in the jurisprudence: regulatory takings as a question of distributional justice and horizontal equity. This Article argues that this equality dimension, which enjoys broad scholarly support, is fundamentally problematic. On a theoretical level, privileging norms of equality engrafts political process rationales for heightened scrutiny onto groups defined solely by the differential burden of a regulation, an exercise in circularity. Equally troubling is the resulting inverted political economy of regulatory takings claims: the greatest judicial protection is provided to those most able to protect themselves through the political system. And from a doctrinal perspective, an overly robust equality inquiry housed in the Takings Clause is inherently indeterminate, warping not only the fabric of takings but also of equal protection. Accordingly, this Article argues that concerns about the uneven distribution of regulatory burdens should sound not under the Takings Clause but rather under the Equal Protection Clause, with its deferential standards for the review of ordinary economic and social regulation. Excising the equality dimension of regulatory takings would properly leave the Takings Clause as a guard against those rare regulatory actions that are functionally equivalent to the direct exercise of eminent domain. The result would be a simpler, clearer, and ultimately more egalitarian law of takings.

Privatization has become a permanent and increasingly significant part of contemporary public policy, especially in the social welfare arena. Commentators are increasingly debating how to maximize privatization's potential to enhance the efficiency of service delivery while grappling with the threat that privatization holds for accountability. A recurring prescription in this debate calls for additional government control of private providers, through agreements that contain ever-more-careful terms, monitored with ever-greater care. This view reflects a model of discrete contracting that places great faith in the capacity of government entities to state requirements in complete terms and to enforce these terms through the threat of termination. This conceptual framework, however, misses the fundamentally relational nature of many of the agreements that define privatization. These agreements reflect the inherent difficulty of capturing requirements over the course of a long-term, closely entwined public-private partnership. Examining a collection of subsidized housing programs, this Article identifies the relational aspects of core agreements between the government and private providers. It then argues that embracing and enhancing the relational features of public-private partnerships holds promise to capture privatization's benefits while providing a different approach to accountability.

Rights-based approaches to advocacy on behalf of homeless persons have long sought to vindicate important dignitary, liberty, and equality interests, as well as establish entitlements to housing, mental health, substance abuse, and other services. This advocacy has had some success in shaping the systems that define the interaction between homeless persons and the state. Rights paradigms, however, can be undermined by the day-to-day reality of the lives of homeless individuals and families that are often shaped by profound need less for protection from the state than for meaningful support. And entitlement advocacy remains circumscribed by the reality of severely limited resources at all levels of government. Given these constraints, this essay argues that rights at the center of homeless advocacy can serve an additional function. The values underlying core rights asserted on behalf of those without shelter can provide a functional tool for providers of services to homeless individuals and families. Deploying rights in this way would serve less to hone an adversarial relationship between clients and service providers, and more as a set of guiding principles for program design and implementation. This essay accordingly argues that a self-conscious rights advocacy can help shape the systems that support homeless individuals and families, outlining core norms that advocates have asserted on the front lines of fighting for the rights of homeless persons and demonstrating how this is working in practice through examples from recent important developments in the field.