Emily S. Bremer


This Article suggests that private governance offers an attractive alternative or complement to the administrative state. It is commonly assumed that without administrative agencies, there would be no regulation. As a foundational matter, this Article challenges the notion that there are only two, mutually exclusive options: governmental regulation or no regulation all. Although it is perfectly natural for public law scholars to focus primarily on regulation through government institutions and programs, much regulation is in fact accomplished via mechanisms outside the administrative state.4 At least in some circumstances, it is not only possible but may even be preferable to use such private governance – alone or in conjunction with public regulation – to achieve public goals.

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