Retaining public value and public law value in outsourcing

We argue that the proliferation of governance in the public sector has raised questions regarding individual constitutional rights. While some proclaim cost savings and entrepreneurial solutions to vexing social ills, others suspect that these benefits don’t outweigh the risk of diminished accountability and the loss of constitutional protection over public service production. We propose a new model to examine the relationships between direct government, governance, public value, and public law value. We apply this model to analyze two landmark Supreme Court cases and one contemporary federal appellate court case to explore the ongoing tension between the governance model and public service production. Our findings suggest that enforcible contract language and public-private entwinement can be used as tools to protect constitutional rights in the face of increasing pressure of governance approaches.