The Renaissance of Private Law

Abstract

Crisis is the new normal. Between global warming, the opioid pandemic, bursts of gun violence, and political instability fueled by fake news, it is hard to remember a time when we were not facing a major catastrophe. Still more troubling, there is a growing sense that our political and regulatory institutions are faltering in their ability to offer effective responses to the incoming crises. The rapid pace with which new problems emerge, together with growing political polarization stymie regulatory and legislative action, resulting in an inability to address contemporary challenges.

Against this gloomy background, we posit an unlikely hero: private law. Thus, recent bursts of social activism litigation have led to impressive legal victories and multi-billion-dollar awards in areas ranging from gun control to the climate crisis. These achievements go a long way towards fashioning better legal responses to contemporary crises, where governmental regulation has failed to do so. These victories are doubly surprising, considering the supposed dominance of public law and regulation over private law as the primary legal framework for promoting broad policy goals. Thus, in the age of regulation we now live in, one would expect private law to take a back seat, as the regulatory machinery, now more elaborate, capacious, and fine-grained than ever, takes charge. In this Article, we show that the exact opposite has happened. Contrary to expectations, private law not only remains relevant but often emerges as the most effective response to deep contemporary problems.

To explain this seeming puzzle, we offer a comparative institutional analysis that highlights multiple advantages that private law possesses relative to regulation. The unique structural features of private law make it more flexible and adaptable, able to offer responses to rapid changes. Private law institutions, for various reasons, are also less susceptible to capture and can resist the effects of political polarization. Indeed, the rise in the importance of private law is due primarily to the decline of our political institutions. Not only does private law have various structural advantages over regulation, but it is also more democratic in that it provides a platform for a wealth of diverse preferences.

Drawing on these insights, we move to our normative mission. We propose a series of procedural and substantive reforms that would facilitate and enhance the use of private law doctrines as legal responses to contemporary crises. Specifically, we explain how class actions, qui tam suits, and the cy pres doctrine can be improved to empower individual agents of change. We also call for the relaxation and modification of doctrinal elements of causation and harm. Finally, we come full circle by advancing a comprehensive account of the interaction, synergies and complementary effects between regulation and private law.