10. 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?
• 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?
• 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?