After the regulatory state: The idea of a private administrative law

This paper advances three interrelated arguments. First, descriptively, it contends that the administrative state has experienced a large-scale transformation due to the significant expansion of private regulatory authority in crucial public policy issues. Second, drawing upon comparative legal methods, analytically, it distinguishes two broad models that have emerged to address this phenomenon: (i) the “private ordering” model, predominant in the US; and (ii) the “private police powers” model, predominant in the EU which, I contend, could be productively understood as an emergent “private administrative law”. Finally, at a normative level, I conclude positioning such a private administrative law model as a distinctive conceptual framework to reflect upon the place, role and the very possibility of law within a landscape of transnational market economies characterized by an expanding topography of private regulators.