Post by Patrick Goold
I have a question for the readers of this blog: Why make a distinction between public law and private law? Note, my question is not what is the distinction, but why is it a useful and helpful division to make? Of course, both questions are important and interrelated, but for now, I would like to focus on the latter.
This may be the central question in the New Private Law. Prior private law scholarship has typically fallen into two broad schools. On one hand, there are the Private Law Skeptics, who argue that all law has “public” ends, and ergo all law is public. On the other hand, we find Private Law Disciples, who point to the millennia-old private-public law distinction and assume it will simply continue. New Private Lawyers are different from both traditional camps. We do not take for granted the private-public distinction. Rather, as inclusive pragmatists, we demand to know whether this is a distinction worth retaining. What good does it do us? But, contrary to Private Law Skeptics, most of us, at least intuitively, believe that something is or can be accomplished by retaining the distinction. So the question is: what is that?
A start at an answer might be as follows: the distinction helpfully emphasizes policy-related differences between legal rules designed to address different kinds of activities and institutions. It may be that both private law and public law have, at some level of abstraction, the same “public” ends – the maximization of welfare, achieving justice etc. However, private law and public law operate in heterogeneous contextual situations: private law governs interactions among private actors; public law governs interactions between private actors and the state. Although the ultimate ends of private and public law are similar, those ends can only be achieved by different means in different contexts. For example, justice may require compensation and correction in the private context, but it may demand punishment or fair distribution of resources in the public context. Private ordering may be trusted to ensure efficiency in inter-personal relationships, but it would be very strange to rely on such a technique in the context of tax law. The conceptual division highlights which rules and principles solve private interaction problems, and which rules and principles are necessary to solve private-state problems.
In turn, the distinction may help us solve new problems as they arise. In my case, realizing that IP law often governs private interactions points towards a body of doctrine and theory that can be fruitfully applied to deal with pressing IP issues. For example, there is a growing problem of accidental copyright infringement. With ever more copyrighted content available, it becomes increasingly easy to unintentionally and inadvertently infringe the copyright of another. The question is how do we deal with such situations? On one hand, we cannot simply exculpate all accidental infringers from liability, because then there would be little incentive for users to prevent such accidents in the future. On the other hand, holding the user liable in every case gives the copyright owner no incentive to take measures that also would reduce the probability of accidental infringement (e.g. by placing copyright ownership information on the work). Luckily, private law provides a solution to this type of problem: the negligence principle. Therefore, in a recent article, Oren Bracha and I recommend adopting a negligence liability rule in cases of accidental infringement. As we demonstrate, holding a copyist liable only in cases where she failed to take reasonable care to prevent the infringement will give both the copyist and the copyright owner incentives to take cost-effective measures to prevent accidental infringement. It was the division between private and public law which highlighted what rules would likely solve this problem in a normatively desirable manner.
Nevertheless, at this stage my thoughts remain nascent and speculative. I am more interested in hearing from you, the readers of the NPL Blog, on this question.