Karen Bradshaw (Arizona State University (ASU) – Sandra Day O'Connor College of Law) has posted Agency Coordination of Private Action: The Role of Relational Contracting (Texas A&M Law Review (symposium paper 2018 Forthcoming)) on SSRN. Here is the abstract:
This Article explores the previously overlooked role of relational contracting in forming and maintaining public-private partnerships.
Relational contracting generally describes firms using formal but legally non-binding agreements to collaborate on shared objectives. Why do parties invest in forming elaborate contracts that they do not — and cannot — enforce in court? Contract theory suggests that the very act of contracting is relationship-building; it generates commitment, trust, cooperation, a win-win philosophy and strengthened communication. Writing down goals and intentions allows parties to clarify expectations while maintaining flexibility for unforeseen conditions.
In this Article, I argue that agencies also use relational contracting — using the process of creating written agreements to build relationships with external actors. Environmental impact statements, forest management plans, and recovery plans for endangered species are examples of such “relational contracts” governing inter-agency and private-public collaborations. I specifically examine the role of recovery planning documents functioning as a focal point to coordinate public and private action of species translocations. This analysis demonstrates that seemingly prosaic planning documents may, in fact, be crucial components of facilitating many agency collaborations. Descriptively, this account adds institutional detail to literatures on new governance and public-private partnerships. Normatively, it raises questions about whether the benefits of synergy generated through contracting offsets the distributional inequities and shrouded government action that the practice may produce.