Law's Public/Private Structure
74 Pages Posted: 23 Sep 2010 Last revised: 20 Oct 2015
Date Written: September 22, 2010
Often derided for its incoherence or uselessness, the public/private distinction is rarely studied explicitly outside the state action doctrine in Constitutional Law. To ignore this distinction, however, is to miss the most fundamental sorting criterion in our law. Distinguishing whether public or private entities control (a) law creation and definition and (b) prosecution leads to a simple yet powerful taxonomy of legal systems. The taxonomy characterizes legal systems in terms of control over decisionmaking by our most basic institutional forms: the public and private. Thus, the proper categorization of laws within the system, for example whether a policy should be administered by Tort or by Contract, should depend on the relative institutional capacities of public and private actors. I propose a small set of basic, or “atomic,” arguments concerning public and private capacities that can be used to generate such institutional comparisons.
The taxonomic model unifies formerly disparate areas of law and scholarship around simple arguments concerning the relative advantages of public and private institutions. This method has many implications, and the Article begins to explore several, including a comparison of private and public Constitutional Law, the placement of various kinds of laws in the model's schema, an application to the recent Supreme Court case of Robertson v. United States ex rel. Watson, and a unification of substantive classification and the property and liability rules of Calabresi’s and Melamed’s famous Cathedral.
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