Privatization and the Market Frame

67 Pages Posted: 27 Feb 2012 Last revised: 10 Sep 2018

See all articles by Matthew Titolo

Matthew Titolo

West Virginia University College of Law

Date Written: February 26, 2012

Abstract

This paper joins a lively debate of scholars who are currently re-evaluating the deep assumptions of American policy discourse in the wake of the ongoing financial crisis and the Great Recession. For the last thirty years, it has been a bipartisan article of faith that markets are better than government at the efficient delivery of society’s needs. This has generated a robust program of deregulation or 'light-touch' regulation as part of a neoliberal economic agenda. During years of strong growth, the consensus hardened into dogma and it became the official policy frame that too much government regulation only stood in the way of prosperity. Left to their own devices markets would self-correct and corporations self-regulate. The financial crisis has thrown into sharp relief the inadequacy of our old baseline assumptions. A deregulated financial sector caused catastrophe in the domestic and global economy and we are still feeling the effects today of sluggish growth and high unemployment. In this paper, I critically examine some of the governing assumptions about state and market, public and private, through the lens of privatization policy. Privatization refers to a 'the use of the private sector in the provision of a good or service, the components of which include financing, operations (supplying, production, delivery), and quality control.' Privatization has been referred to as the symbolic centerpiece of neoliberal, market-based governance in the United States - and indeed, around the globe.

In this paper, I suggest that we need to suspend our baseline, ex ante biases in favor of markets and instead embark on a critical examination of our assumptions to decide which are worth keeping and which need to be jettisoned. I suggest that we will need to shift our baseline away from a technocratic view of privatization as neutral and apolitical to a view of privatization as fraught with normative implications and entailments. I proceed as follows. First, I lay out what I call the dominant neoliberal frame, explaining what the frame entails and arguing that it has become our horizon of understanding, making it very difficult to think ourselves out of its epistemic blind spots. Second, I provide a brief overview of recent privatization history and some debates surrounding the phenomenon. Third, I then isolate several key assumptions in the debates regarding how markets work and discuss how the technocratic assumptions built into the debate make it difficult for us to see how privatization policies work in the world (rather than how they might work in an idealized world). I conclude by suggesting new baselines for privatization discussions and, more broadly, for legal theory in general as it moves past the old neoclassical models and seeks to develop new ways of seeing.

Suggested Citation

Titolo, Matthew, Privatization and the Market Frame (February 26, 2012). Buffalo Law Review, Vol. 60, 2012, Available at SSRN: https://ssrn.com/abstract=2011386

Matthew Titolo (Contact Author)

West Virginia University College of Law ( email )

101 Law School Drive
Morgantown, WV West Virginia 26506
United States

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