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Public Law vs Private Law

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What is the difference between “public law” and “private law”?

The distinction between public law and private law concerns who the law directly governs or affects.

  • Public Law – Public law consists of laws aimed at regulating the function of society. The main areas of public law are constitutional law, administrative law, and criminal law.
    • Constitutional law – Centers on the determination of whether government action (either federal or state) somehow interferes with the rights granted to individuals under the Constitution.
    • Administrative law – Concerns the laws and procedures developed by administrative agencies to regulate a particular subject matter.
    • Criminal law – Concerns the rules prohibiting bad acts that the state directly enforces against individuals.

Discussion: How does an appellate court protect the constitutionally granted rights of individuals against infringement? Try to think of examples of how federal and state administrative agencies enforce laws? Who brings charges against and individual who violates a criminal statute?

Discussion Input
  • The judicial system has established different laws that look to protect against the infringement of individuals’ rights. Laws such as civil and criminal laws are put in place to prohibit individuals from infringing other people’s rights as well as protect their property. These laws provide the remedies available to complainants who have had their rights infringed. These laws protect against, but not limited to trespass, defamation, theft, conversion of property and many other infringements. Federal and state administrative agencies are given the mandate to enforce these laws by ensuring that they take action against individuals who undermine the rights of fellow citizens. State agencies such as the police enforce the law by arresting wrong-doers or using their instruments to track down criminals or those accused of going against the rights of other individuals. In a criminal case, the state is the one that brings charges against an individual deemed to have violated a criminal statute.

  • Private Law – Private law concerns the legal relationships between individuals. The main areas of private law are property law, contract law, and tort law.
    • Property law – Centers on the ownership rights of individuals with regard to tangible or intangible assets.
    • Contract law – Regards the ability of individuals to form and enforce agreements.
    • Tort law – Protects the rights of individuals against infringement by other individuals.

Discussion: How is it possible that individuals can have rights in things to the exclusion of others? What are some examples of property rights? What allows individuals to enter into business transactions with others? What is the effect if the parties have no confidence in the other party complying with their obligations under an agreement? What is the effect of being able to enjoy one’s right with or without fear of infringement by others?

Discussion Input
  • Certain groups of people enjoy rights or are governed by laws that don’t apply to others in the society. A good example would be property rights and business laws. The owners of certain property are governed by certain laws and regulations concerning their property or possessions. For instance, with a land owner, certain laws will apply to him but will not apply to a person who doesn’t own a piece of land. The same goes for businesses. Certain laws will govern business owners only, and their interactions with the public. Since business entities are deemed to be ‘persons’, they are able to enter into contracts and agreements with others. When such parties get into an agreement, there should be proper drafting of the terms of agreement and the damages that can result in one failing to honor the agreement. This means that both parties are enjoy their rights in that agreement since the terms of agreement are legally abiding. This way, they don’t have to fear since the agreement terms offer the necessary remedies should one party fail to honor their part of the agreement.

Practice Question: Richard has a business and needs capital for expansion. He decides to sell an interest in his business to public investors to raise capital. He realizes that his company’s performance may not be attractive to most investors, so he alters his financial statements to drastically inflate its apparent profits. Richard sells shares of his business to investors for a total of $100,000. In doing so, he fails to follow federal and state securities filing and disclosure laws. If the Securities and Exchange Commission brings a civil action against Richard, is this an example of public or private law? Is it a public or private action if the investors bring a legal action against Richard to recover their invested funds?

Proposed Answer
  • In this example, Richard is subject to civil litigation brought by the Government (the SEC). As such, it is a matter of public law. If the shareholders bring and action, this would be a private action and thus private law between individuals.

Academic Research

Harel, Alon, Public and Private Law (September 3, 2013). Forthcoming, Oxford Handbook of Criminal Law, eds Markus Dubber & Tatjana Hörnle. Available at SSRN: https://ssrn.com/abstract=2320031 or http://dx.doi.org/10.2139/ssrn.2320031. This is a survey of the debates concerning public and private law. It provides a link between two debates which are typically conducted separately from each other: the debates concerning the autonomy of private law and the use of private law to promote public ends on the one hand and the debate concerning privatization on the other hand. It shows that there are strong links between these debates and it also defends the view that there are principled (rather than merely contingent) reasons to maintain the autonomy of public law and to provide certain goods publicly.

Harel, Alon, Public and Private Law (September 3, 2013). Forthcoming, Oxford Handbook of Criminal Law, eds Markus Dubber & Tatjana Hörnle. Available at SSRN: https://ssrn.com/abstract=2320031 or http://dx.doi.org/10.2139/ssrn.2320031. This is a survey of the debates concerning public and private law. It provides a link between two debates which are typically conducted separately from each other: the debates concerning the autonomy of private law and the use of private law to promote public ends on the one hand and the debate concerning privatization on the other hand. It shows that there are strong links between these debates and it also defends the view that there are principled (rather than merely contingent) reasons to maintain the autonomy of public law and to provide certain goods publicly.

Gorriz, Carlos, Blurring the Distinction between Public and Private Law in Spain (March 30, 2017). Available at SSRN: https://ssrn.com/abstract=2943406 or http://dx.doi.org/10.2139/ssrn.2943406. The distinction between Public and Private Law has been and still is being used in Spain. Nonetheless, nowadays it should only be used as a departing point. The reality evidences that it is necessary to go further, and deepen in different branches of law, to fully apprehend the reality or rightly assess the complexity of the case. The analysis of the Spanish Maritime Law, the action on damages arisen from antitrust infringements and the case of the preferred stakes in Spain evidences the reality.

Kanner, Allan, Public and Private Law (1997). Tulane Environmental Law Journal, Vol. 10, p. 235, 1997. Available at SSRN: https://ssrn.com/abstract=1874930. This article explores the impact of state and federal environmental laws and regulations on landowners’ property rights, and their constitutionally protected rights of access to the courts, which have historically been employed by property owners to protect those property rights. These private actions include actions for nuisance, negligence and strict liability for abnormally dangerous activities. At the same time, new public law regulatory schemes have emerged to deal with these same activities and intrusions. The co-existence of public and private laws addressing environmental hazards raises a number of important issues. One question is when, if at all, may legislation establishing an administrative regime be invoked defensively to validate and legitimate conduct that would, under judicial scrutiny at private law, be deemed to damage the property of another, or interfere unreasonably with the use and enjoyment of another’s property? In other words, when, if at all, does a civil wrong cease being an immediately actionable wrong? The answer proposed here is that it rarely makes sense to delay the prosecution of an otherwise actionable civil wrong. Most arguments in favor of delay improperly attempt to create an expression of legislative will to compel the weighing of pragmatic concerns of dubious authenticity and substance against constitutional rights expressly created to protect one’s property and to authorize private actions in service of the same goal. More troubling are the extreme misrepresentations one sees in arguments concerning the forms, limits, and practice of public environmental law which are advanced to defeat property rights.

Fox, Dov, Selective Procreation in Public and Private Law (May 21, 2016). 64 UCLA L. Rev. Disc. (2016); San Diego Legal Studies Paper No. 16-220. Available at SSRN: https://ssrn.com/abstract=2782888. This Article sets forth a new way to think about the ethics and law of choosing genetic traits in future children. And it applies this framework of offspring to controversies over efforts to select offspring traits including sex, race, intelligence, and deafness using methods ranging from donor selection to embryo screening and gene editing. I adapt the lens of ambivalence that Professor Robert Burt developed in the end-of-life context to illuminate an irreducible tension between the two values at stake in selective procreation. I call these values “acceptance” of the limits found in the natural world and “control” over the limits that nature imposes. The appeal of both resonates as much at life’s beginning as at its end. The resulting ambivalence counsels a complex regime to govern selective procreation that mediates the extremes of compulsion and prohibition in ambiguous and even contradictory ways. This regime would combine legal protections for offspring selection such as public subsidies, insurance mandates, tax breaks, and malpractice actions with measures to rein in that same practice as through sin taxes, counseling requirements, advertising limits, and prenatal “choice architecture.”

van den Berge, Lukas, Rethinking the Public-Private Law Divide in the Age of Governmentality and Network Governance: A Comparative Analysis of French, English and Dutch Law (December 29, 2017). European Journal of Comparative Law and Governance, Vol. 5. No. 2, 2018. Available at SSRN: https://ssrn.com/abstract=3094301. This article presents an analysis of the ways in which the public-private law divide is envisioned in French, English and Dutch law. First, it explains why French law’s tradition of regarding public and private law as ‘two separated worlds’ is now outmoded, failing to live up to the present trends of ‘governmentality’ and ‘network governance’ determining the modern art of government. Subsequently, it argues that the holistic idea of English ‘common law’ as French law’s conceptual counterpart is equally outmoded, with its ideology of ‘self-government’ within a ‘stateless society’ being out of touch with an age of governmental managerialism in which the state withdraws from society only to increase its grip on societal processes. Finally, it proposes a paradigm recently developed in Dutch doctrinal thought as an attractive theoretical framework for structural innovations that may contribute to a stable and legitimate system of modern European public law that attunes to its present context without being alienated from its central classical tenets – be it either those rooted in the French or the English tradition.

Dubber, Markus D., Criminal Law Between Public and Private Law (July 17, 2009). Available at SSRN: https://ssrn.com/abstract=1499538 or http://dx.doi.org/10.2139/ssrn.1499538. To criminalize something (not someone, ordinarily) means to bring it within the scope of criminal law; in this sense, crime is a legal phenomenon, as is punishment. This means that an account of criminalization needs an account not of crime simpliciter, but of law in general, and of criminal law within it. In this paper, I approach this task equipped with two distinctions, one – between law and police – designed to illuminate the concept of law, and the other – between public and private law – meant to clarify that of criminal law.

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