Three Faces of Privatization

By Kathy Abrams

The following is an excerpt from Kathryn Abrams’ chapter, “Three Faces of Privatization” from the 2016 book, Privatization, Vulnerability, and Social Responsibility: A Comparative Perspective edited by Martha Albertson Fineman, Ulrika Andersson, and Titti Mattsson.

‘This chapter will examine three of the many faces of privatization in the American legal and political system. My goal is to highlight the range of initiatives that come within this rubric; but my focus will be different than many accounts attempt. My emphasis will not be on where and how privatization is accomplished (i.e., what is privatized, through what processes, with what kinds of means ultimately being used for the provision of goods or services), though I will advert to these issues in my discussion. Instead, I will interrogate these instances of privatization with regard to three other features that are less often discussed.

First, I will consider the motivations for the shift in the provision of goods or services. Although this typological scheme will inevitably oversimplify, I will highlight three kinds of motivations for privatization. The first, which underlies the classical understanding of privatization, I will call “institutional”: state actors determine that particular services can be better or more cheaply provided by the market, or by some form of public-private partnership. This motivation usually entails a judgment that enabling recipients of a particular service to select from among a range of institutional options will result in greater satisfaction, or improvement of the service through competition, or both. Institutional privatization is often connected with a second motivation, which I will call “fiscal”: budgetary constraints make it necessary or prudent for the state to reduce or withdraw from the provision of certain services, or to outsource them to private (either for-profit or nonprofit) providers who for reasons of expertise, economies of scale, or freedom from certain kinds of regulation, provide them more cheaply. Finally, there is a form of privatization that I will identify as “moral”: in this case state actors decide to reduce or withdraw from the provision of a particular service because they have reached the conclusion that the service is morally problematic, or that it has encouraged in its beneficiaries forms of judgment or behavior that are morally problematic. The goal in these forms of privatization is not simply to withdraw from the provision of the service, but to do so in a way that incentivizes the morally preferred form of choice or behavior, or to support institutions that can provide appropriate forms of moral guidance.

In deploying this range of categories, I depart from the way that some scholars of privatization would use the term. Paul Starr’s classic article on privatization, for example, Excluded from its definition state decisions to defund rather than alter the institutional structure for the provision of goods and services (Starr, 1998). And many scholars of privatization view the term as designating the movement of service provision (or ownership of assets) from the public to the market sector, as opposed to the broader view, often associated with feminism, which emphasizes ‘’outsourcing’’ of particular tasks from the public or market sector to the private family (Cossman, 2005; Fineman, 2004). I see value however in juxtaposing the consumption of “moral privatization’’ to its more familiar “institutional” and “financial” counterparts. While each of these terms or processes reflects a withdrawal of the state from the provision of services, they reflect strikingly different assumptions about the human beings who are their focus, a feature which seems useful to bring interview. Moreover, vulnerability analysis, which asks how societies can best recognize and address the inevitable, pervasive condition of human vulnerability, suggests the importance of examining forms of privatization that place responsibility for dependency on the family or on the individual, as well as on the market.

Second, I will explore the view of the human subjects of privatization that is assumed by the privatizing state. The paradigmatic subject Who is referenced in forms of “institutional “privatization discourse is the autonomous subject in the “Republic of choice’’ (Williams, 1991): The individual or family, exercising the substantially unencumbered choice among vehicles for obtaining a particular good or service that privatization allows. The subject of pure “fiscal” privatization (although privatization, as this inquiry will suggest, is rarely purely fiscal) is a variant of this autonomous chooser: resourceful, self-reliant, and able to respond successfully to a diminution of governmental support. Where privatization is animated by a moralizing impulse, however, assumptions about the subject change markedly. This subject may be characterized as a manipulative chooser, whose opportunistic decisions serve to extract undeserved benefits from the government; or she may be described as a flawed and in capable chooser, who fails fully to apprehend the trajectory of her decisions or is easily swayed by others.

Finally, I will investigate the role of the state in relation to the subject of privatization, as it moves away from direct provision or funding of services. This role, as I will argue, can sometimes be paradoxical. In each of my examples, the state continues to engage with (former) recipients of a particular public good or service; and some of them, the state may remain as present in the lives of recipients as it was before privatization occurred. State involvement may persist when the state’s goal is to facilitate choice among institutional providers: it may retain the power to supervise the conditions of competition, or to establish the metric by which recipients exercise their choice. But state involvement is particularly likely to persist when the state is engaging in “moral” privatization: the state must retain a robust supervisory role in order to incentivize or discipline the behavior of opportunistic choosers, or to guide flawed or uncertain choosers toward morally preferred forms of behavior. That’s the question facing analysts of privatization may be not whether this date should be involved in service provision, but in what kind of role.

I will examine these dimensions of privatization through three examples the first of the field of public education, where students and their families have experienced both “privatization by attrition” and privatization through the explicit governmental creation of a regime of “school choice”. The second is the field of welfare reform, or federal governmental retrenchment in the field of public assistance and imposition of regulatory controls on the provision of assistance by states has resulted in the privatizing of costs of public assistance both onto nonprofit (and religious) providers, and onto individual families, including both mothers and non-custodial fathers. In the third area, reproductive health, the patterns of privatization result both from the gradual withdrawal by the federal judiciary of the legal infrastructure supporting reproductive choice, and from state decisions that reflect a lack of support for reproductive health services.

These examples point to two conclusions, which I elaborate below. First, the rhetorical emphasis on the “choice “a recipients that pervade privatization discourse often becomes a vehicle for shielding the non-neutral assumptions that states decision makers make about, and the varying stances and policies they employed to word, different categories of state beneficiaries. State efforts to withdraw from the provision of services to socially subordinated groups demand particular attention. And second, because privatization, in its varied iterations, may fail to grasp the way that certain needs inhere in the human condition, vulnerability theory may provide a vehicle for questioning both the direction of these efforts and the premises about the human subjects of privatization they reflect.’

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A Note from Prof. Hila Keren on “The Alarming Legal Strategy Behind a SCOTUS Case That Could Undo Decades of Civil Rights Protections”

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The Supreme Court has recently agreed again to hear businesses’ claim that they should be allowed to refuse to serve LGBTQ clients due to their owners’ religious beliefs. Its recent decision to review an appeal on the decision of the Tenth Circuit in 303 Creative LLC v Elenis is a bad sign for the LGBTQ people, their allies, and anyone who cares about civil rights in this country. Is the highest court in the country—now controlled by a conservative supermajority—going to change decades of insisting that businesses will serve everyone? Are we about to go back to darker times of a segregated marketplace?

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Disability, Vulnerability, and the Limits of Antidiscrimination

by Ani B. Satz

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“Despite the passage of the Americans with Disabilities Act of 1990 (ADA), disabled Americans face substantial barriers to entry into the workplace, lack material supports including health care and transportation, and may not receive reasonable accommodation that best supports their functioning. In addition, individuals with impairments have difficulty qualifying as disabled for disability protections. In light of these problems, some commentators suggest that a civil rights or antidiscrimination approach to disability discrimination – an approach for which activists fought for twenty years prior to the enactment of the ADA – may not adequately address disability discrimination. Some critics advocate a return to the social welfare model that ADA activists struggled to avoid, namely, a model focused on material supports for disabled persons.

I argue that reforming disability law requires a blend of the civil rights and social welfare models as informed by a novel lens: vulnerability as universal and constant. The current antidiscrimination approach to disability law reform is limited because it views disability as a narrow identity category and fragments disability protection. Fragmentation, a new concept I develop in this Article, results when susceptibility to disability discrimination is treated as if it arises in discrete environments, such as the workplace and particular places of public accommodation. Viewing vulnerabilities as situational generates a host of problems: it results in a patchwork of protections that do not coalesce to allow meaningful social participation, fails to appreciate the hyper-vulnerability (extreme sensitivity) of disabled individuals to certain environmental changes, artificially restricts the protected class by creating a false perception that some individuals with significant impairments are not disabled because they are able to function in particular circumstances or environments, and disregards the benefits of conceptualizing vulnerability to impairments as affecting disabled and nondisabled persons alike.

Interpreting Martha Fineman’s theory of vulnerability and applying it for the first time within disability legal studies, I argue that vulnerability to disability and the vulnerabilities disabled individuals experience more acutely than those without disability are both universal and constant. The shared vulnerabilities of disabled and nondisabled individuals suggest the need to restructure completely social institutions to respond to barriers to work and social participation. For practical reasons, I advocate a compromise focused on disabled persons with regard to accommodation for employment and some aspects of social participation: a move away from the standard antidiscrimination approach, which fragments protections, to an approach that treats vulnerability as extending across environments and enables a broader provision of material supports for disabled individuals. In particular, the reasonable accommodation mandate should be expanded with governmental supports to allow disabled workers accommodations both inside and outside the workplace that facilitate their employment. Additionally, a dialogue between employers and employees about accommodating disability should be mandatory, and employees should be entitled to reasonable accommodation that supports their preferred methods of functioning. Given the current legal structures in place, however, recognizing vulnerability to illness as universal suggests the need for universal health care, or treating access to health care as a matter of social welfare rather than disability law.”

Satz, Ani B., Disability, Vulnerability, and the Limits of Antidiscrimination (2008). Washington Law Review, Vol. 83, p. 513, 2008, Available at SSRN:

A Vulnerability Approach to Private Ordering of Employment

by Jonathan Fineman

“2. Reconceptualizing the  employment  at-will  debate     

Instead of  continuing  to engage in  efforts to eliminate  the at-will rule, it might be more fruitful to discuss how to reform the American system to provide additional benefits and protections for workers. Such an approach  would  begin by addressing why it is imperative in the 21st century that employers assume some responsibility for the negative consequences their decisions have not only on their employees, but also on society.

To achieve this type of more balanced or socially equitable end, we do not need to completely rethink the employment relationship. In some respects, we can think of employment as partially a private or individual contractual relationship between employer and employee, recognizing the ability of the respective parties to shape their relationship to their mutual advantage. But recognizing the possibility of individualized negotiation does not mean that the contract aspects of employment relationships should dominate the approach to regulation. Employment is a social relationship that needs to be governed with a view towards social implications, not just private concerns.

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Theorizing the More Responsive State: Transcending the National Boundaries of Law

by Laura Spitz


“In a recent essay in the Yale Journal of Law & Feminism, Martha Fineman proposed the concept of shared “vulnerability” as an alternative framework to traditional American equal protection analyses for describing, assessing, and addressing economic and social inequalities. Putting aside the particulars of her theory for a moment, critical to Fineman’s analysis is her assertion that a vulnerability approach to the allocation and (re)distribution of societal resources requires “a more responsive state.” In this paper, I focus on a basic question provoked by her call for a more responsive state, namely: to what does she refer when she invokes the “state”‘ Fineman does not resolve this question, except to say that the state is “the manifestation of public authority and the ultimate legitimate repository of coercive power” but not necessarily the nation-state. If not necessarily, or not only, the nation-state, then where is it (or where might we locate it) for the purposes identified by Fineman. At both a conceptual and organizational level, one answer might be transnational or supranational institutions in North America. Much of the American literature theorizing the state has focused on the nation as the locus of state power and authority. Functional theories, instrumental theories, and critical theories have typically conceived of the state as defined by territorial and/or geopolitical borders. Within legal scholarship, an even narrower focus has been common: the state as adjudicatory apparatus. Yet it may be more productive (and promising) for feminists to shift the conceptual lens so that it embraces a wider and less vertical conception of state power. Thus, this paper takes up Fineman’s invitation to begin the task of theorizing a “more responsive state” in the US, by looking beyond the US to North America, and putting two groups of scholars in conversation with one another: feminist legal theorists, on the one hand; and integration theorists, including governance theorists within that broader category, on the other. Ultimately, my aim is to suggest that feminist legal scholars might usefully begin (re)theorizing the state by engaging with the process of North American integration (and with integration theorists) in order to explore integration’s emancipatory or progressive potential for responding to the sorts of inequalities identified by Fineman.”

Read more here.

Spitz, Laura, Theorizing the More Responsive State: Transcending the National Boundaries of Law (September 24, 2009). UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 17/2009, Available at SSRN: or

Martha Albertson Fineman’s 2022 ABF Outstanding Scholar Award Speech

Below you will find the text of Professor Martha Albertson Fineman’s 2022 ABF Award speech. The award ceremony took place virtually on Tuesday, February 15, 2022.

“Thank you very much Dean Nance for such a lovely introduction.

I was very proud when I first became a fellow of the American bar foundation, an organization comprised of an impressive group of scholars, jurists, and practitioners dedicated to upholding the finest traditions of legal scholarship and practice.

Of particular importance to me over the years has been the Foundation’s commitment to using an interdisciplinary approach to consider the complexities and intricacies of law and their implications for society.

In this regard, the foundation has served a vital role — not only in supporting — but also in validating interdisciplinary research seeking to understand how law both arises from and impacts the societies in which we live.

As many of you are undoubtedly aware, such interdisciplinary studies have not always been well received within the Academy, and today we see attacks on critical theory specifically and academic freedom more generally by politicians and others.

Such threats seem to be destabilizing and undermining the very institutions upon which we depend.

Those of us who believe such critical but constructive research is essential for a thriving democracy and a just society welcome the example and support of organizations like the American Bar Foundation.

Receiving the outstanding scholar award for 2022 is not only a tremendous honor, but validation for my work that will sustain me in the complex and unsettled future we most certainly face. Thank you.”

Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises

by Marc Roark and Lorna Fox O’Mahony

“Political and property crises open up vital new questions for property theorists, and analyses of state responses to these crises cast new light on how property systems, and property law, adapt and evolve to meet complex challenges—while remaining institutionally resilient themselves. The novel coronavirus pandemic was an extreme, exceptional, unexpected, significant ‘shock’ event, with financial, economic, social, cultural and political impacts on a scale not experienced since at least the 1930s. The threat the pandemic posed to human life demanded immediate action in response to an unexpected and unpredictable and urgent threat, delivered under intense public scrutiny. The challenges were ‘wicked’: governments were compelled to act, in conditions of uncertainty and in response to a complex set of high stakes problems, with imperfect information about the impacts of policy choices or the likely endpoint of the pandemic.
In acting swiftly to protect their populations, governments adopted radical strategies to shore up housing and home, to tackle street homelessness, and to protect tenants and mortgagors from the threat of eviction. Perhaps most notably, pandemic policies to protect housing intervened with ‘private property’ law in ways that were unimaginable before Spring 2020. In this article, we examine the range of ways that governments adapted their approaches to property, housing and homelessness during the pandemic. We analyze the adaptation of property rules in the pandemic using the new theoretical and methodological framework of ‘Resilient Property’. We consider the implications of the actions to adjust the laws and policies that govern property, housing, eviction and homelessness, and reflect on the legacies of these actions for property theories and property law.”
I. Property and the Pandemic
Our analysis draws examples from five jurisdictions: the U.S., the U.K., Ireland, Spain and South Africa. Seeking out a middle-ground—between abstract meta-theories or politically polarized binaries, and on-the-ground doctrinalism—Resilient Property is rooted in contextualized, historicized accounts of state action with respect to private property. It focuses on the systems that create property outcomes, seeking to build a realistic understanding of how these are adjusted: through tactics, strategies, advocacy, but also through events and externalities. Our approach aims to develop new insights to how property works, as well as what works, when states respond to property problems.
Eschewing the ab initio philosophical commitments that characterize much liberal property theory, it is focused on developing a new mode of thinking about property, and the methodological and analytical tools to enable this. To this end, our approach echoes neo-pragmatism, in seeking first to understand state responses to property problems in a complex, multi-scalar governance framework. Wood and Smith explained that:

“…one of the central features of pragmatism is that it is a way of thinking that is grounded in anti-foundationalism. Ideas are not transcendent, fixed truths, rather they are outcomes of embodied experiences and instrumental actions that are dynamic, contingent and continually evolving. Decades before the first post-structuralist utterances, the early pragmatists were turning away from metanarratives, objective truths, and unifying theories, preferring instead to develop modes of thinking, which they believed had greater utility for helping people to cope with the messiness of everyday life.”
Resilient Property offers techniques for engaging with—while not eliding or transcending—the ‘messiness’ of property problems, echoing this pragmatic concern for dynamic, contingent and continually evolving modes of thought. Finally, our analysis of state-level and city-level responses to squatting also resonates with the concept of ‘pragmatic localism’—the proposition that ‘high-scale’ ideology (given effect through national policy) can be mediated to deliver ‘what works’ to solve policy problems at the local level; indeed, “not just ‘what works, but what works here’.”
‘Resilient Property’ offers a fresh lens through which to understand the nature and effects of state action with respect to private property in periods of crisis and pressure. In what has become an ‘age of crises’, the coronavirus pandemic exemplifies a compound health/economic/property crisis. Each state’s response can be understood relative to other nation states, as well as in relation to its own background commitments—the pre-pandemic property nomos or ‘normative universe’ of legal texts, decisions, norms and narratives that frames state responses to property challenges in each jurisdiction. We review state responses to eviction, housing and homelessness during the pandemic, reflect on the extraordinary steps that states have taken to shore up occupation—enabling people to ‘shelter in place’—and evaluate the impact of the pandemic through a Resilient Property lens.”

Roark, Marc and Fox O’Mahony, Lorna (2021) ‘Comparative Property Law and the Pandemic: Vulnerability Theory and Resilient Property in an Age of Crises.’ Louisiana Law Review, 82. ISSN 0024-6859 (In Press). Available at

Law and Structuring Individual and Institutional Responsibility: Beyond Equality and Freedom

Below you will find working chapter titles for our upcoming collection to be published by Routledge. These papers were presented at a VHC workshop in January titled “Re-Conceiving Equality and Freedom: Vulnerability, Dependency, and the Responsive State.”

Part I centers the vulnerable subject in place of the liberal subject in constitutional law and legal theory. Part II uses vulnerability theory to rethink traditional approaches to law. Part III reconceives state responsibility in the context of health care, including public health emergencies. The chapters that comprise Part IV use vulnerability theory to explore the inadequacies of legal rules that structure our economic lives. The final chapter will explore the potential for vulnerability theory to shift approaches to access to justice.

  • Restructuring the Constitution for Human Resilience | Martha McCluskey (Professor of Law and Magavern Faculty Scholar, University of Buffalo)
  • Everything Old is New Again: The Pandemic and the Vulnerable Subject | Kathryn Abrams (Herma Hill Kay Distinguished Professor of Law, Berkeley Law School)
  • Nondiscrimination as a Property Right| Xiaoqian Hu (Associate Professor of Law, University of Arizona)
  • Housing Trusts and Resilient Cities: Solving Property Problems Through a Vulnerable Lens | Marc Roark (Louisiana Outside Counsel of Health and Ethics Endowed Professor of Law, Southern University Law Center)
  • Using Vulnerability Theory to Reconceive the Relationships Between Indigenous Nations and the United States | Laura Spitz (Professor of Law, University of New Mexico), Nazune Menka (Tribal Cultural Resources Policy Fellow, UC Berkeley School of Law)
  • Market Citizenship and Resilience Allocation | Hila Keren (Associate Dean for Research and Paul E. Treusch Professor of Law, Southwestern Law School)
  • The State’s Role in the Social Contract: Vulnerability Theory and the Workplace | Jonathan Fineman (Associate Dean for Student Learning & Assessment and Professor of Law, Florida Agricultural and Mechanical University)
  • Vulnerability and Health Law after COVID-19: From Entitlement to Obligation| Matthew Lawrence (Associate Professor of Law, Emory University)
  • Vulnerability, Disability, and Public Health Emergencies | Ani Satz (Professor of Law, Emory University)
  • The Elder Catch: Engineering the Future of Caregiving | Jessica Dixon Weaver (Robert G. Storey Distinguished Faculty Fellow, Gerald J. Ford Research Fellow, and Professor of Law, SMU Dedman School of Law)
  • Gender, COVID, and Care | Naomi Cahn ( Justice Anthony M. Kennedy Distinguished Professor of Law, University of Virginia), June Carbone (Robina Chair in Law, Science and Technology and Professor of Law, University of Minnesota)
  • Manufacturing Resilience | Lua Kamál Yuille (Professor of Law, Northeastern University)
  • The State’s Use of Law and Public Policy to Support and Strengthen Unionization and the Labor Movement | Risa Lieberwitz (Professor of Labor and Employment Law, Cornell University)
  • Vulnerability Theory and Access to Justice: Elaborating Possibilities for Legal System Design | Andrew Pilliar (Assistant Professor of Law, Thompson Rivers University)

Animals as Vulnerable Subjects: Beyond Interest-Convergence, Hierarchy, and Property

by Ani B. Satz

Image via Pixabay

Human relations with domestic animals—companion, factory farm, and laboratory animals—are based on contradiction. We coddle them, eat them, leave our estates to them, experiment on them, buy them designer collars and clothes, wear them, risk our lives for them, and abandon and kill them. These contradictions are entrenched in a sprawling body of law regulating human use of animals as property.

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Vulnerability and the Organisation of Academic Labour – A Special Issue of The Law Teacher

The Law Teacher, Volume 55, Issue 1 (2021)

This special issue of The Law Teacher was edited by Graham Ferris and Martha Albertson Fineman. Pieces and contributors include:

  • Vulnerability Theory and Higher Education by Risa L. Lieberwitz
  • Undermining Resilience: How the Modern UK University Manufactures Heightened Vulnerability in Legal Academics and What Is to Be Done by Graham Ferris
  • Rethinking the Neoliberal University: Embracing Vulnerability in English Law Schools? by Doug Morrison and Jessica Guth
  • Vulnerability, the Future of the Criminal Defence Profession, and the Implications for Teaching and Learning by Nicola Harris, Roxanna Dehaghani and Daniel Newman
  • Vulnerability Theory as a Tool against a Banking Model of Legal Education by Fabrizia Serafim
  • The Positive and Negative Roles of Grant Funding as Mechanisms for Societal Transformation and the Development of Community Resilience by M. Joan Wilson and W.R. Sexson
  • The University’s Fragile Role in Fostering Societal Resilience by Facilitating the Development of Community-Engaged Professionalism by W.R. Sexson and M.J. Wilson
  • Two Futures for Law Schools by Alastair Hudson
  • Book Review –  Key Directions in Legal Education: National and International Perspectives by Aysha Mazhar
  • Enemies of the People? How Judges Shape Society by Ben Waters
  • Book Review – Law and the Passions: Why Emotion Matters for Justice by Senthorun Raj
  • Book Review – Resisting Disappearance: Military Occupation and Women’s Activism in Kashmir by Gowri Nanayakkara
  • English Legal System by Alexia Zimbler
  • Criminal Law Directions by Kate Astall