Wednesday, January 30, 2008
I have posted an article, "Keeping It Private", which is coming out in the San Diego Law Review and also in the University of Queensland Law Journal in Australia, where it is part of a symposium on the role of public policy in private law.
"Private law" is about the relations of private people and institutions, whereas "public law" is about the government and people's relations with it. So private law includes commercial law, property law, and private wrongs like negligence. Public law includes constitutional law and criminal law - where the powers of government are directly involved.
In common law countries, not surprisingly, private law tends to be common law. Common law has a history, style, and ethos of its own; and it tends to have a (small-l) liberal flavour. Academics and activists sometimes urge that private law should be more like public law: that courts should treat tort and contract cases more in the way they (sometimes) treat public law cases - more overtly and self-consciously politically.
I argue in the article that this would be a bad idea. It would make private law less stable, as judges of different parties would judge cases differently; it would politicise the courts (even more than they are already); and perhaps most importantly, it would erode habits of impartiality among judges - accelerating what Larry Solum calls a "downward spiral of politicisation" among judges.
You can download the article here - scroll down past the "abstract" to the "SSRN Electronic Paper Collection" near the bottom of the webpage. Read the whole thing!