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Turner on the Public-Private Distinction

By Lawrence Solum

Christian Turner (University of Georgia Law School) has posted A Public/Private Theory of Legal Systems on SSRN. Here is the abstract:

Often derided for its incoherence or uselessness, the public/private distinction is rarely studied explicitly outside of 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, (b) law enforcement, and (c) the valuation of remedies leads to a simple yet powerful, three- dimensional taxonomy of legal systems. The categories created are (a) those akin to the familiar, substantive disciplines of Contract, Tort, and Criminal Law, (b) an additional category I call Parens Patriae, and (c) the property and liability rules of Calabresi?s and Melamed?s famous Cathedral.

Because these categories are generated by the public/private distinction, a small set of canonical, ?atomic? arguments concerning public and private capacities can be used to chart their differences. These atoms are: preference calculation advantage, distributive advantage, public calculation advantage, and resource advantage. The taxonomic model unifies formerly disparate areas of law and scholarship around these 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 boxes, and an application to the recent Supreme Court case of Robertson v. United States ex rel. Watson.

Full post as published by Legal Theory Blog on September 24, 2010 (boomark / email).