Document Type
Article
Abstract
After the Supreme Court's opinion in Dobbs rejected an individual right to reproductive choice, many private firms chose to govern reproductive healthcare by covering employee access to abortions. As mass shootings continue to plague the country, some firms have decided to govern firearm safety by discontinuing sales of assault weapons. While the climate crisis continues to upend life on Earth, corporate leaders are engaging in private environmental governance by voluntarily reducing their own emissions, demanding reductions within their supply chains, and pressuring peers and competitors to do the same. Each of these endeavors represents a form of private governance in which private firms seek to advance some view of public welfare despite, and often in spite of, government policy. This Article argues that private governance is an important source of policy, but we must approach it carefully because private power can come at the expense of democracy.
Focusing specifically on private environmental governance (“PEG”), this Article explains that there is an important role for democratic oversight even when policies emerge from non-governmental sources. Taking a multidimensional view of democracy that includes majoritarian impulse, individual contestation, reason-giving, and deliberation, the Article demonstrates that PEG has a democracy deficit. Private institutions often lack democratic practices, raising concerns about specific private policies. Moreover, and more importantly, private governance regimes can undermine public control of decision-making, diminishing opportunities for democratic public governance.
There are, however, two remedies to this democracy deficit. First, private governance regimes should enhance their democratic practices by incorporating democratic institutional designs from administrative law. However, this solution alone does not fully address private governance's broader democracy deficit. The deficit stems from the devaluation of democratic public politics and society's diminished engagement in democracy, to which private governance contributes. Thus, to fully resolve the broader deficit, this Article encourages leveraging the authority of the state to reallocate power and ensure more thoughtful public decision-making.
By challenging the traditional assumptions surrounding private governance and offering remedies for its democracy deficit, this Article offers a fresh perspective on environmental governance. It calls for a comprehensive reevaluation of PEG's role within the democratic ecosystem, emphasizing the importance of democratic practices to achieve effective and equitable environmental protection.
Recommended Citation
Joshua Ulan Galperin, Governing Private Governance, 56 Ariz. St. L.J. 765 (2024, https://digitalcommons.pace.edu/lawfaculty/1283.
Included in
Administrative Law Commons, Environmental Law Commons, Jurisprudence Commons, Law and Politics Commons, Law and Society Commons
