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The Supreme Court's Theory of Private Law


Nathan B. Oman


William & Mary Law School

Jason M. Solomon


William & Mary Law School

March 2013

Duke Law Journal, Vol. 62, No. 6, 2013
William & Mary Law School Research Paper No. 09-241

Abstract:     
In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment–tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or “public law in disguise.”

Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we briefly trace the development of the doctrine surrounding the tension between the First Amendment and private law, particularly tort law, and how it helps lead to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main claim at issue in Snyder, is a particularly poor vehicle for the Court’s theory of private law. A relatively recent tort, it was developed by scholars and judges as a means of redress for plaintiffs who had been wronged, but were left without a remedy.

Part III presents the central claims of the Article. We argue that the conception of private law as government regulation in Snyder arises from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism, specifically in obscuring the plaintiff’s agency and the state interest in redress, and in privileging a particular view of compensation. In Part IV, we present some normative or prescriptive implications of our analysis, and then conclude.

Number of Pages in PDF File: 61

Keywords: private law theory, First Amendment, tort

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Date posted: March 20, 2013  

Suggested Citation

Oman, Nathan B. and Solomon, Jason M., The Supreme Court's Theory of Private Law (March 2013). Duke Law Journal, Vol. 62, No. 6, 2013; William & Mary Law School Research Paper No. 09-241. Available at SSRN: http://ssrn.com/abstract=2236243

Contact Information

Nathan B. Oman (Contact Author)
William & Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
HOME PAGE: http://nboman.people.wm.edu
Jason M. Solomon
William & Mary Law School ( email )
South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States
757-221-3833 (Phone)
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