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Saturday, September 21, 2013

Defining public law

What is public law, as distinct from private law? Has anyone come up (or can anyone offer) a good defintiion of the distinction, where the line is, and falls in which category? A student asked a question the other day, which rested on the premise that the Constitution (and constitutional claims against the government) was public law and everything else was private law (the issue was a plaintiff bringing claims under both § 1983 and Title IX or Title VII). But that doesn't reflect convention, where we typically speak of statutory anti-discrimination law  (Title VII, Title IX, et al.) as public law, even when it involves claims against private entities.

So where is the line and why?

One possibility is that anti-discrimination are like the Constitution, in that Congress was attempting to enforce the Fourteenth Amendment. But that doesn't work because these statutes were actually enacted pursuant to either the Commerce or Spending powers, not § 5. It reflects the values of the Fourteenth Amendment, but it is not really enforcing that provision. Plus, a lot of other statutory areas (labor law comes to mind), though not touching on the Fourteenth Amendment or discrimination at all, are labeled public.

Another is to include all constitutional and statutory issues as public. But a lot of stuff that often gets called private (say, corporations, business formation, and business deals) involves statutes and statutory issues. Even contracts (which a Roman Law expert might call the quintessential private law issue) is somewhat displaced by the UCC in many areas.

Further thoughts?

 

Posted by Howard Wasserman on September 21, 2013 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink

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With Shelley v. Kraemer (holding that racially restrictive covenants violated the 14th Amendment, where the state action was courts' role in enforcing such property contracts between two private parties), is any law "private" anymore, if it ever was? That was the Court's implicit concern--that with its opinion, all contracting parties are now subject to the 14th Amendment.

Posted by: Steven R. Morrison | Sep 21, 2013 10:33:43 AM

I had always thought of public law as what regulates an individual's (sometimes non-citizen's) relationship with the government and private law as what regulates an individual's relationship with other individuals or non-governmental groups.

Posted by: Grad Student | Sep 21, 2013 12:41:25 PM

Other than to undertake the intellectual exercise, why does it matter? If it does matter, doesn't it only matter in connection with the use of the concept? And to invoke the metaphor theorists, isn't it more likely that we can imagine prototypical instances of public law and private law (traffic regulation, on one hand, versus contract damages under the UCC, on the other, for example), with hard cases in the middle of the continuum capable of being reasoned associatively to either prototype?

Posted by: Jeff Lipshaw | Sep 21, 2013 12:45:10 PM

See Goldsmith and Levinson; Whytock, for recent treatments.

Posted by: Anon | Sep 21, 2013 12:50:55 PM

Jeff: Well, I think intellectual exercises can be fun, which is 1/2 the point of sites like this one. But you're right that this has no formal real-world effect. Although it may have a pedagogical one. Some law schools are moving towards sub-specialties and the public/private line may be one way of defining those sub-specialties.

Grad: As I said in the original post, the line you suggest doesn't jibe with our conventions, which label as public law employment discrimination (even in disputes involving private employers), labor law, and public accommodations law (even though most restaurants, etc., are privately owned). Probably others.

Posted by: Howard Wasserman | Sep 21, 2013 4:42:04 PM

I think the distinction matters, for a few reasons. For one thing, identifying what is common across domains of public law may reveal common problems or common solutions to those problems, which might not have been so obvious without the exercise in categorization. Or, to the extent the line can't be drawn, it might well tell us something interesting about the nature of law or its enforcement. Pedagogically, I think it reinforces learning in each area when you can draw analogies between them along a significant conceptual line.

Posted by: anon | Sep 21, 2013 4:49:05 PM

Hi Howard,

There are a number of interesting issues here. The public law / private law distinction is never going to be conceptually airtight, and I think the line may move with time; it's one of those classic expert conventions, with layers of meaning and history buried in it, only some of which is relevant or even accessible today.

The public law / private law distinction does not map on to current controversies over Congress' Reconstruction powers. (State criminal law, for instance, is clearly public law; it's not about the U.S. Constitution.)

That said, you really should not be so quick to suggest, as you do above, that Title VII was not an exercise of Congress' Fourteenth Amendment power. That would be big news, I think, to all the state and local government entities that continue to face Title VII lawsuits despite current sovereign immunity doctrine. Maybe you mean something different by "enacted pursuant to," but it seems to me pretty important and clearly true as a matter of current law that Title VII is, in fact, a valid exercise of 14.5 power, not just Commerce.

With labor law, I think you have to take history into account: in earlier periods, before labor law became so ossified and limited, I don't think it's too much of an exaggeration to say it was supposed to be the major public regime regulating our economic life. That is why it was viewed as one of the most important areas of law. Today, I suspect many people view labor law as more of a dispute resolution system between employees and employers, a kind of special form of quasi-contract law. If that's all it is, then it looks more like private law -- it is about disputes between two private parties, only indirectly (at best) implicating public values. However, the whole point of having labor law, in the first place, was that it was more than that.

I think I'd try to tell the story of this distinction as Jeff suggests, by moving outward from paradigm cases -- start with things that are clearly public or private law, then move into the more disputed territory. What we call "public law" is in part a question of where we think the law is implementing public values, rather than simply resolving claims among private parties. That's why I think Title VII counts as public law (and still would even if the Supreme Court's recent sovereign immunity / 14.5 jurisprudence were more extreme, to the point that states became immune from Title VII suit).

Posted by: Joey Fishkin | Sep 21, 2013 5:25:54 PM

I'll stand corrected on Title VII as a § 5 enactment, at least as to states. I have no doubt it is properly classified as "public," regardless of its constitutional source.

I thought about lines similar to the "implementing public values" that Joey suggests. But isn't that what common law courts do whenever they resolve claims among private parties? Wouldn't everything--or at least everything that comes through judicial/legal processes such as litigation--become public?

Posted by: Howard Wasserman | Sep 21, 2013 5:53:50 PM

My rough intuition is that private law = power-conferring rules (in Hart's sense) for people who don't work for the government, plus the regularity framework structuring how those powers are to be protected and used; public law = power-conferring rules for people who do work for the government, plus reg framework ditto. But I'm sure this is subject to about ten million counterexamples.

Posted by: Paul Gowder | Sep 21, 2013 7:01:06 PM

Paul: So where would anti-discrimination law fall?

Posted by: Howard Wasserman | Sep 21, 2013 7:06:04 PM

A couple others, not entirely consistent with one another: public law regulates government conduct; public law is any case in which govt is a party.

Posted by: Anon | Sep 21, 2013 7:35:15 PM

Things like Title VII: private law; part of the regularity framework for the power-conferring rules applicable to private economic actors (contract, agency, etc.) Equal protection clause: public law.

Though, come to think about it, and the very first comment in the thread, Shelley blows up this distinction too, since it can be framed as either private law (about contract, about giving people the power to obligate one another!) or public law (about giving the courts the power to enforce some contracts!). So, bah, I take it back.

Posted by: Paul Gowder | Sep 21, 2013 7:37:56 PM

(Then again, we might take Shelley less to suggest that I have the wrong intuition about the domains of the concepts "public law" and "private law" as actually used, and more to suggest that those concepts are not, actually, coherent.)

Posted by: Paul Gowder | Sep 21, 2013 7:45:21 PM

If we can come up with a good theory of public and private law, and if that theory suggests that the distinction has some normative force, it might well be (another?) reason to criticize Shelley. (Obvious proviso: not in favor of judicially-enforced racial covenants, but the Shelley's reasoning is a bit hard to swallow.)

Posted by: anon | Sep 21, 2013 8:37:34 PM

Howard, also well said. The classic debate of this kind over adult refreshment was whether X activity was a sport. I think I've gotten grumpier about playing category games as I've gotten older.

Posted by: Jeff Lipshaw | Sep 22, 2013 11:49:03 AM

I tried to post this last night. Hope it doesn't double post. But here goes: This is a topic on which I've done a good bit of thinking and writing. So pardon the apparent self-promotion; it's just rare that the stuff I do is so directly on point.

One problem is that we use the words public and private to refer to several related but distinct concepts and attributes of legal systems. But the intuition that these are somehow related and fundamental is a correct one. In this article - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1681056 - I show how one conception of the distinction (that between public and private institutions) yields a familiar taxonomy of the law (contract, tort, crim, and what I label patens patriae), which is useful for understanding the what and why of a great many seemingly unrelated questions. And in this follow-up - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2026631 - I use the theory to develop a two-step state-action theory that I believe gets cases like Shelley right by more carefully perceiving the problem. (I also have a forthcoming chapter in an edited volume that would be a shorter intro but, alas, the book isn't quite out.)

I go through several of the points raised above in these articles. But maybe one quick point here. Secondary rules may be public, meaning controlled by a public institution, and yet govern the recognition of privately made "laws." For example, state contract law governs the making and enforcement of private contracts that create primary duties. It isn't the public/private distinction in the abstract that is incoherent, but the failure to recognize that, for example, the enforcement of a private contract in a public court involves the cooperation of public and private institutions, each with constraints of competency and legitimacy.

Posted by: Christian Turner | Sep 22, 2013 11:53:21 AM

And since whether X activity is a sport is one of my favorite debates, I guess I have not reached the same point of grumpiness.

Posted by: Howard Wasserman | Sep 22, 2013 11:58:44 AM

Perhaps it's awaiting moderation that Jeff is privileged not to await, but I've tried and failed to post a comment to this a couple of times. My apologies if it shows up more than once in the end. But this is a topic on which I've done a good bit of thinking and writing. So pardon the apparent self-promotion; it's just rare that the stuff I do is so obviously and directly on point.

One problem is that we use the words public and private to refer to several related but distinct concepts and attributes of legal systems. But the intuition that these are somehow related and fundamental is a correct one. In this article - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1681056 - I show how one conception of the distinction (that between public and private institutions) yields a familiar taxonomy of the law (contract, tort, crim, and what I label patens patriae), which is useful for understanding the what and why of a great many seemingly unrelated questions. And in this follow-up - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2026631 - I use the theory to develop a two-step state-action theory that I believe gets cases like Shelley right by more carefully perceiving the problem. (I also have a forthcoming chapter in an edited volume that would be a shorter intro but, alas, the book isn't quite out.)

I go through several of the points raised above in these articles. But maybe one quick point here. Secondary rules may be public, meaning controlled by a public institution, and yet govern the recognition of privately made "laws." For example, state contract law governs the making and enforcement of private contracts that create primary duties. It isn't the public/private distinction in the abstract that is incoherent, but the failure to recognize that, for example, the enforcement of a private contract in a public court involves the cooperation of public and private institutions, each with constraints of competency and legitimacy.

Posted by: Christian Turner | Sep 22, 2013 11:58:59 AM

The following comes from Christian Turner (Georgia):

One problem is that we use the words public and private to refer to several related but distinct concepts and attributes of legal systems. But the intuition that these are somehow related and fundamental is a correct one. In this article - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1681056 - I show how one conception of the distinction (that between public and private institutions) yields a familiar taxonomy of the law (contract, tort, crim, and what I label patens patriae), which is useful for understanding the what and why of a great many seemingly unrelated questions. And in this follow-up - http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2026631 - I use the theory to develop a two-step state-action theory that I believe gets cases like Shelley right by more carefully perceiving the problem. (I also have a forthcoming chapter in an edited volume that would be a shorter intro but, alas, the book isn't quite out.)

I go through several of the points raised above in these articles. But maybe one quick point here. Secondary rules may be public, meaning controlled by a public institution, and yet govern the recognition of privately made "laws." For example, state contract law governs the making and enforcement of private contracts that create primary duties. It isn't the public/private distinction in the abstract that is incoherent, but the failure to recognize that, for example, the enforcement of a private contract in a public court involves the cooperation of public and private institutions, each with constraints of competency and legitimacy.

Posted by: Howard Wasserman | Sep 22, 2013 12:57:47 PM

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