In this Essay, we first observe the rise of what we call "quasipublic executives":
both "nominally private executives," that is, private executives in charge of public functions such
as corrections, education, and national defense; and "nominally public executives," that is, public
executives who have assumed private characteristics such as insulation from electoral control
mechanisms. We proceed to argue that control mechanisms for quasipublic executives should be
drawn from both constitutional law and corporate,law, broadly interpreted. Constitutional law
and corporate law both face the problem of controlling executives but use radically different
control mechanisms to do so. This difference, we argue, can be justified only by differences in
the institutional settings of the executives governed by each body of law or in the functions with
which they are charged. But because quasipublic executives, whether nominally public or
nominally private, operate in private institutional settings and perform public functions, this
justification for the use of different control mechanisms cannot apply to them. Further, we argue
that the law's failure to draw control mechanisms from both fields is symptomatic of a larger
doctrinal distortion. Under this distortion, the solutions that the law offers to social problems are
often driven more by the doctrinal field to which those problems are assigned than by functional
considerations.
In this Essay, we first observe the rise of what we call "quasipublic executives":
both "nominally private executives," that is, private executives in charge of public functions such
as corrections, education, and national defense; and "nominally public executives," that is, public
executives who have assumed private characteristics such as insulation from electoral control
mechanisms. We proceed to argue that control mechanisms for quasipublic executives should be
drawn from both constitutional law and corporate,law, broadly interpreted. Constitutional law
and corporate law both face the problem of controlling executives but use radically different
control mechanisms to do so. This difference, we argue, can be justified only by differences in
the institutional settings of the executives governed by each body of law or in the functions with
which they are charged. But because quasipublic executives, whether nominally public or
nominally private, operate in private institutional settings and perform public functions, this
justification for the use of different control mechanisms cannot apply to them. Further, we argue
that the law's failure to draw control mechanisms from both fields is symptomatic of a larger
doctrinal distortion. Under this distortion, the solutions that the law offers to social problems are
often driven more by the doctrinal field to which those problems are assigned than by functional
considerations.
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