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102 Iowa Law Review 883 (2017)


During the New Deal era, Congress created a then-unprecedented program of economic and regulatory reforms, establishing independent agencies, and empowering them to shape and enforce pragmatic industrial policies. Twenty-first century regulation looks strikingly different from the New Deal vision. While New Deal agencies continue to perform some regulatory functions, market approaches have replaced many traditional command-and-control formulations, with private entities stepping in to perform tasks historically reserved to government.

Though government-by-contract is becoming the new normal, neither the Administrative Procedure Act ("APA") nor many of its state equivalents provide adequate guidance to ensure that individual rights are protected and democratic values preserved during these changing times.

This Article proposes a practical response to the outsourcing revolution: a new statutory framework derived from the elements of contract and directed toward public-private partnerships and contemporary delegations. If successful, our proposal would address the democracy deficit that inheres in the shadowy outsourcing processes that are common today; it would invite public stakeholders into the contracting process; and it would establish an essential safeguard for individual rights.