Private Law and Public Regulation in U.S. Courts

Abstract:     
The distinction between public law and private law does not carry the same significance in the U.S. legal system as is the case in other countries. This is in part a result of historical developments that provide a public law role for private litigation. Private litigation is used in the United States in ways not common or even possible in other countries. Paul Carrington has written that the private law/public law distinction "is in America seldom noticed," in part because "American judicial institutions ... were not designed merely to resolve civil disputes, but were fashioned for the additional purpose of facilitating private enforcement of what in other nations would generally be denoted as public law." This characteristic of the U.S. judicial system has particular importance for the development of specific aspects of U.S. law, and provides context for consideration of cooperation with other nations in the areas of private law, private international law, and judicial cooperation. In this paper I explore a bit of the history behind these aspects of U.S. law, as well as the resulting unique legal characteristics that history has produced.

Keywords: impact litigation; private international law; U.S. law; American law

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