Privatizing Due Process

Abstract

In the era of privatization, when more and more government activities are being placed in private hands, a full understanding of procedural alternatives to due process becomes an urgent matter of public policy. When the government privatizes an activity it delegates public power and often leaves procedural issues unaddressed. At this juncture "private due process" becomes a meaningful consideration. Included within this realm are a disparate set of alternatives: state concepts of fair procedure, available either at common law or by statute; process mandated by statute to effectuate some specific federal purpose; process connected judicially to general federal statutes such as the antitrust laws; and due process protocols that are emerging from alternative dispute resolution procedures.

After evaluating the current state of the public and private procedural landscape, this article will address two questions arising from the current privatization debate: (1) can private procedural alternatives somehow be connected to the privatization of government functions; and (2) should federal law consider codifying these privatized procedures in a more general way. In other words, is it time to consider a private administrative procedure act?

Keywords: Due Process, state action, administrative law