can i get the summary and notes

Finally, the Minnowbrook III gathering occurred within a context of political and societal turbulence, as well as dissatisfaction with market mechanisms many felt had come to dominate public administration. Although these crises were not discussed in detail, there was a general, and persistent, call for an administrative ''scorecard'' based on values beyond those of rational efficiency and performance. Public administration on these terms has an obligation to gauge its effects on society based on democratic-constitutionalism as well as on values such as efficiency. Participants suggested that democratic values such as equality, transparency, and representativenessvalues traditionally associated with the aims of public lawneeded to be reasserted into public administration. There were also parallel discussions about the changing nature of program administration in the 21st century and the importance of managerial innovations and autonomy in dealing with those changes. Many participants were supportive of entrepreneurial managerialism in pursuit of a more ethical and democratic administration. There was also widespread support for the growth of collaborative and participatory administrative regimes, as well as acknowledgement of the inherently networked and multisectoral nature of today's implementation environment. Of course, the emphasis on the exercise of discretion by managers, however well intentioned, runs counter to a public law perspective, which sees statutes, rules, and judicial precedent as the legitimate guiding forces for administration, especially for administrators that would behave arbitrarily or capriciously, in democratic systems. Thus, the discussions at Minnowbrook III largely reflected, either directly or indirectly, the notion that law and i128 Journal of Public Administration Research and Theory management are somehow working at cross purposes in pursuit of the public good in the administrative process. Those discussions also sparked; however, some early musings about ways in which these intellectual approaches to public administration might be brought together. The final section of this essay grows these initial thoughts into a coherent argument for the integration of law and management in modern public administration. Essential to that argument are the underpinnings of discord in the literature concerning the long and growing tension between law and management perspectives. LONG AND GROWING TENSION BETWEEN LEGALISM AND MANAGERIALISM Scholars have long recognized public law and management as foundational intellectual approaches to public administration but approaches that represent different values in the administrative process. Not surprisingly, the normative character of the portrayals of legalism or managerialism in the literature depends heavily on the camp with which the authors allies herself. Illustrating extremes of these views, public law is seen as either champion of democratic values in the administrative process or as an unwarranted constraint on the effective implementation of public programs. Likewise, management is viewed either as the paramount basis of the study and practice of public administration (e.g., White 1926, vii-viii) or as an offender, indifferent to constitutional values, of legitimate public bureaucracy.3 Although these differing portrayals highlight the persistent theme of ''tension'' (see, e.g., Rosenbloom 1983b; Rosenbloom and Naff 2008; Zinke 1992), we preface our review by noting that normative conceptions of law and management are subject to the influence of temporal context. An observer of the bureaucratic landscape in 1933 might think, as White did, that managerial capacity was the primary challenge but that the administrative sprawl of 1946 might reasonably evidence that control and accountability were the main challenges. An observer in 1986, on the other hand, after six decades of legal evolution might understandably wonder whether managerial flexibility was the key issue. In short, the amount of attention paid to either the managerial or legal approach depends somewhat on the expediencies of public management at a particular time. This section reviews major arguments for a public administration grounded in the foundation of public law, or alternatively, in the evolving practices of public management. This is not intended to be a comprehensive review of these camps but rather offers a window to view long-running disagreements regarding the most legitimate basis of administration in this country. Literature emphasizing the legitimate grounding of public administration in law highlights the potential implications of management reforms on democratic norms of equality, accountability, and transparency in governance. For example, democratic values imposed on public administration by the Constitution and the Administrative Procedure Act provide administration with legitimacy, whereas also impressing a democratic logic of decision making during implementation that is distinct from economic efficiency or political expedience (Freedman 1978; Mashaw 1985). In this context, whenever management reforms are analyzed for their effectiveness, standards of democracy are among important indicators of success or failure. For example, many have observed that contracting out public services 3 As noted above, the stark contrasts drawn between these concepts by authors may reflect the desire for rhetorical clarity, rather than a true belief that they are irreconcilable. Nonetheless, there are sharp distinctions drawn in the literature between the normative values of these competing intellectual approaches to public administration. Christensen et al. Management, Law, and the Pursuit of the Public Good i129 through the private sector raises the possibility that democratic values will either be ignored altogether or deemphasized when public agencies feel pressure to emphasize efficiency above all other criteria in the implementation process (Brown, Potoski, and Van Slyke 2006; Diller 2002; Domberger and Jensen 1997). Indeed, some observe that much of contemporary privatization lies beyond the reach of mechanisms of administrative law designed to limit discretion, ensure accountability, and facilitate citizen input in the implementation process (Freeman 2000; Warren 2004). Therefore, when public agencies, or the political principals to which they answer, choose to outsource key elements of programs to nongovernmental actors, critics suggest those actors will use this insulation to pursue profit over the public good. Studies of welfare, and the contracting out of case management, job training, and other key services after the reforms of the mid-1990s, have provided evidence that program recipients enjoy fewer due process protections and that accountability problems have worsened under privatized delivery (Bedzek 2001; Diller 2002). In addition to scholars focused on the importance of public law in ensuring democratic norms in an age of increased privatization, a chorus of scholars has specifically argued that law must be the guiding approach for administration in a variety of implementation scenarios (Gilmour and Jensen 1998; Moe and Gilmour 1995). Rosenbloom and O'Leary (1997, 2) warn, for example, that ''defining public administration as management gives primacy to the values of efficiency, economy, and effectiveness. Political responsiveness, representativeness, and accountability become subordinate concerns.'' Others suggest that prioritizing management over law in public administration is fundamentally wrong because the responsibilities of, the discretion for, and the very enterprise of ''public management'' are determined by legal authority (Kettl and Fesler 2005; Bertelli and Lynn 2006). In the other camp are those who suggest the time for strict legalism is past and that modern restrictions on managerial discretion limit not only government performance but also accountability (e.g., Anechiaro and Jacobs 1996; Behn 2001; Dicke and Ott 1999). Jos and Tompkins (2004, 276) even note that efforts to legally prevent abuse of managerial discretion can be counterproductive, undermining a manager's very ''capacity to take one's obligations seriously and apply them sensitively as a matter of habit and principle.'' Although few propose a ''law-less'' public administration, some contend that rules and statutes form legal thickets that distract and impede administrators in pursuit of efficient and effective performance. Under this negative conception of ''rules-based management '' (Kassell 2008, 241), public law unduly restricts administrative discretion in a way that makes it difficult to successfully engage in the complex realities of intersectoral and intergovernmental implementation. This might be attributed to spillover or chilling effects on nonarbitrary discretion that comes from regulation leveled at penalizing capricious exercise of discretion (see ''accountability paradox,'' Jos and Tompkins, 2004). The managerialist's concern with a law-founded public administration also focuses on law's perceived role in creating waste as a result of ''foolish overregulation'' and spawning risk averse organizational cultures (Osborne and Gaebler 1992, 23). Ironically, some authors also suggest that restrictive laws governing managerial behavior actually impede democratic values in the administrative process by hindering the ''formation of firm commitments to ethical ideals'' among managers (Jos and Tompkins 2004, 264). Despite these potential disadvantages, it should not be assumed that laws are solely detrimental. Whereas the law can arbitrarily constrain and cause administrative hardship in some instances, it can also enable effective i130 Journal of Public Administration Research and Theory public management in other instances, thereby serving cross purposes for administration, intended or otherwise.4 Our review of the preceding scholarship underscores the tension possible between law and management in public administration. In the following section, we propose a solution to this tension that is attentive to the practice of public administration and focuses on how each perspective can best reinforce the values inherent in the other in a variety of implementation situations.5 INTEGRATING LAW AND MANAGEMENT IN PUBLIC ADMINISTRATION We hope this proposal can allow the discipline to speak with a more unified voice about the appropriate place of public administration in a democratic system, as well as spark new ideas for research. Our solution turns on three elements. First, we take as a guiding principle that public law can be used to direct and facilitate, rather than simply constrain or impede, administrative behavior. Second, we demonstrate how policy implementation reflects democratic values enshrined in public law, rather than accepting the heretofore incomplete picture of public management as having abandoned democratic values in favor of pragmatism. Finally, we argue that integrating law and management in a productive fashion can be accelerated dramatically if public managers are able to engage in crafting the former. Law Not Only Constrains but Also Enables During a time when many advocates of new public management were clamoring to ''free'' public administrators to behave entrepreneurially by ridding them of constraining laws and regulations, Cooper (1997) emphasized the potentially positive relationship between public law and effective program management. He argued that conscientious managers could improve the delivery of public goods to citizens by instrumentally using rulemaking, administrative adjudication, interjurisdictional agreements, and contracts (Cooper 1997). In contemporary scholarship, the concept of reconciliation between law and management can be detected in surprising places. For example, in their criticism of new public management, deLeon and Denhardt (2000, 96) explain these reforms often bring administrators face to face with ''aspects of democratic governance they are rejectingdemocratic citizenship, civic engagement, and the public interest ... [and that] many will be uneasy to realize they are moving away from such fundamental values.''6 The goal is then to envision how administrators can reassert these values in the practice of administration, vis-a`-vis legal mechanisms such as agency rulemaking, contesting statutes or procedures of operation, or judicial review. Further discussion of reconciliation is found within work on privatization and contracting out. Freeman (2000, 1289) argues that a narrow or overly legalistic conception of public law is likely to underestimate the potential noneconomic benefits of privatization: 4 To this point, a reviewer further commented that scholars should be careful to overly equate law with democratic mores, and as in opposition to efficiency and performance. 5 The distinction between the tension in the literature versus in practice is important because the literature has traditionally argued for more stark differences between management and law perspectives than are apparent to some in the practitioner community. 6 See Box et al. (2001) for another example of how managerial reforms threaten substantive aspects of democracy. Christensen et al. Management, Law, and the Pursuit of the Public Good i131 ''instead of simply constraining the private role in public governance ...'' public law should ''aim to facilitate and direct it.'' Freeman (2003) later suggests that privatization can be viewed as an opportunity for ''publicization,'' where the process of contracting can bring numerous firms who might otherwise operate primarily within markets under the purview of public law and subject to its norms. Beermann (2002) further argues that private firms carrying out public purposes are often more heavily regulated than traditional government providers of the same service. The author supports this claim specifically citing the federal extension of nondiscrimination norms to private contractors before the Civil Rights Act demanded the same standards of government actors, as well as the stringent regulation of charter versus public schools in some states.7 Thus, he suggests that privatization within sectors of heightened regulation can increase in some cases, rather than decrease, political accountability and the link between public programs and democratic values. Describing Management More Fully: Implementation Can Reflect Democratic Values Enshrined in Public Law We believe the scholarship discussed above suggests that public law and some modern tools of public management work together to enhance public values, such as accountability, in the implementation process. Furthermore, we believe that concerns about the abandonment of other democratic norms, such as citizen participation and pluralism, in the pursuit of program efficiency or effectiveness stem largely from an incomplete understanding of the modern enterprise of public management. More specifically, it grows from a somewhat myopic focus on those elements associated with the ''public administration orthodoxy'' (Rosenbloom 1993), such as technical rationality and process efficiencies, as well as those associated with a market logic of management. Modern public management is significantly more, however, than the combination of these elements. Management is, in fact, focused on furthering many of the same values and norms that proponents of a law-based administration have argued are most clearly enshrined in and protected by public law.8 Increasing representation, facilitating citizen participation, and building collaborative relationships that ensure value plurality in the administrative process are all vital elements of what many public managers already do. Perhaps nowhere are these roles more evident than in the routines of city and local government managers. Scholars have argued for more democracy in city governance, where citizens are intimately involved in the development and administration of programs (Lappe and DuBois 1994; Mathews 1994). Frederickson (1997) goes one step further, suggesting that local government managers have the capacity to not only increase government effectiveness but also to enhance civil society and build social capital.9 7 One could also find support in the Court decisions demanding that private corrections facilities are obligated to meet the same standards as their state-run counterparts (e.g., Correction Services Corporation v. Malesko [2001]; Richardson v. McKnight [1997]). 8 Some would argue that management and management reforms have always been couched in important ways in democratic values, such as accountability (Moe 1994). 9 This can be accomplished when managers facilitate citizen participation and adopt what he terms a ''community paradigm'' for decision making. Nalbandian's (1999) interviews with managers also confirm that the roles of professional administrators have evolved to include significant community building activities, facilitation of citizen participation in policy development, and knowledgeable representation of citizens' needs in the work of government. i132 Journal of Public Administration Research and Theory Local government is not the only place to observe the facilitation of democratic values, such as participation, by public managers. As early as 1979, the Advisory Council on Intergovernmental Relations noted that changing professional values among managers had legitimized citizen roles in areas as diverse as community development, crime prevention, mass transportation, and hazardous waste disposal (US Advisory Council on Intergovernmental Relations 1979). Since that time, the growth in collaboration among citizens and government managers has become a consistent focus of, and in many cases prescription by, public administration scholars (e.g., Etzioni 1994; Vigoda 2002).10 We note that the close relationship between government and citizens is only one of many democratic values inherent in modern public management. Scholars have long observed that policy implementation increasingly takes place within networks of government, nonprofit, and private entities, rather than within singular hierarchically structured public agencies (Gage and Mandell 1990; O'Toole and Montjoy 1984). Some of these arrangements are mandated in statute (Hall and O'Toole 2000), but many are voluntarily organized by managers and other participants (see Agranoff 2007). Public managers within these arrangements identify, activate, and manage organizations from different sectors, as well as other relevant stakeholders, to solve problems and effectively deliver public services, even in periods of limited government investment (e.g., Provan and Milward 1995; McGuire 2002). Thus, this literature suggests the nature of networked policy implementation means that modern public management is inherently more pluralistic and, therefore, potentially more democratic than in previous periods. However, it remains unclear how public managers will further reinforce democratic values within networks as they address challenges associated with pluralism and decision making, such as value conflict, standards of fairness and equity, dissent, and mutual commitment (O'Leary and Bingham 2008; Ostrom 1989). Finally, scholars have recognized other valuable contributions of public management in promoting democratic values. For example, there is evidence across service delivery sectors that public agencies are able to effectively represent the interests of different groupings of citizens in the implementation process (Keiser et al. 2002; Riccuci and Meyers 2004; Rourke 1984; Selden 1997; Wilkins 2006). Public organizations are improving their ability to mobilize citizens around relevant policy issues and, more importantly, connect citizens to institutional arenas of decision making. These actions are significant since they often give a ''voice'' to segments of the public otherwise disenfranchised from political processes. More specifically, public managers and staff are educating the public on participation in public hearings, serving on policy advisory panels, engaging administrative rulemaking, and communicating with key policy actors via multiple media (Andrews and Edwards 2004; Leroux and Goerdel, 2009). Overall then, there is evidence that modern public management is concerned with democratic values such as citizen participation, pluralism, and representation. There are also those in the legal community who argue that public law could and should be used to facilitate rather than constrain these activities. It seems to us the next logical step is to determine the best method for accelerating the productive union of law and management in the production of a more democratic administration. Whereas there are obviously