Quasipublic Executives

Paul Gowder

In this Essay, we first observe the rise of what we call "quasipublic executives": both "nominally private executives," that is, private executives in charge of public functions such as corrections, education, and national defense; and "nominally public executives," that is, public executives who have assumed private characteristics such as insulation from electoral control mechanisms. We proceed to argue that control mechanisms for quasipublic executives should be drawn from both constitutional law and corporate law, broadly interpreted. Constitutional law and corporate law both face the problem of controlling executives but use radically different control mechanisms to do so. This difference, we argue, can be justified only by differences in the institutional settings of the executives governed by each body of law or in the functions with which they are charged. But because quasipublic executives, whether nominally public or nominally private, operate in private institutional settings and perform public functions, this justification for the use of different control mechanisms cannot apply to them. Further, we argue that the law's failure to draw control mechanisms from both fields is symptomatic of a larger doctrinal distortion. Under this distortion, the solutions that the law offers to social problems are often driven more by the doctrinal field to which those problems are assigned than by functional considerations.