Posted by: nplblog | 7th May, 2015

Private Law – A Response to Lipshaw — John Goldberg & Henry E. Smith

Post by John Goldberg and Henry Smith

There is plenty to argue about on the question of what properly falls under the heading of private law. Jeffrey Lipshaw, however, goes further in a recent post suggesting that the idea of private law is “oxymoronic” in the same way that the idea of a private language is oxymoronic. In support of his claim he notes that a contract is an agreement expressed in language, the meaning of which might have to be determined by third parties such as judges and jurors. It follows, supposedly, that all contracts are “public.”

Jeff’s position appears to be a particularly dramatic rendering of the now-familiar dogma that “all law is public law.” The standard version of that dogma, as applied to contract law, plays out as follows. Although a contract is an agreement between private parties, contracts are adjudicated and enforced by state machinery, therefore contract law is no less public than any other law. Jeff has now upped the ante, for he seems to say that what makes contract law (and all law) public is simply that it involves the use of language!

We are unpersuaded. One could say that the point of contract law is to enable parties to use the public resource of language to enter into agreements that are underwritten by the promise of enforceability through the courts. It would hardly follow that contract law, and contracts, are in no meaningful sense private.

The adjective “private” means different things in different contexts. Contract law is private law because it sets up a framework through which the contracting parties create obligations owed to, and rights against, one another, and because it specifies that a breach of the relevant obligations will give rise to a private right of action. The mere fact that a third party might have to adjudicate a dispute about the terms of the agreement hardly suffices to render the agreement irrelevant—indeed, it presupposes an agreement exists to be interpreted.

We do not deny that private law has public aspects. It is law, after all. Nevertheless, they do not make “private law” a contradiction in terms. Private law is not secret law!

John Goldberg & Henry Smith

Responses

[…] ‘Private Law – A Response to Lipshaw': “There is plenty to argue about on the question of what properly falls under the heading of private law. Jeffrey Lipshaw, however, goes further in a recent post suggesting that the idea of private law is ‘oxymoronic’ in the same way that the idea of a private language is oxymoronic …” (more) […]

You flatter me by your serious and thoughtful response.

To be clear, however, I was not suggesting that inclusion of contract law in the “private” category was meaningless. Indeed, I said it was likely a helpful heuristic for the stuff that interests you all. And the distinction between public and private is almost certainly well understood conventionally at the extremes – e.g., law created wholly between two private parties (by way of contract) is private, and law created between two states (a treaty) is public. The pushback from Matt Bodie, Steve Bainbridge and others was with respect to the close cases.

I agree my headline was (over)dramatic. It had the intended effect! But I was making two moderately serious points that were not nearly as dramatic as I think you characterized.

First, the definition game IS a lawyer’s game. I suppose if there were a statute passed that said “All law professor concentrating on public law shall be paid salary two times that of one concentrating on private law, ceteris paribus,” I’d be in the middle of the fray arguing about what is in and out of the basket. But I’m not sure what the distinction actually cashes out. My lingering concern is that the definition game in academia pretty easily turns into the discipline game (i.e. what’s in a discipline and what is not), and that’s a subject on which I’ve written extensively – and with a normative spin: lawyers (particularly business lawyers) need to be careful about getting locked into disciplinary tunnel vision.

Second, though we can discuss the impact of writing down an agreement on one’s moral compunction to abide by its terms, I have argued (see the Canadian Journal of Law & Jurisprudence essay) that indeed our voluntary interpersonal (I-You) commitments are essentially moral, and that we objectify them precisely for the purpose of making them publicly resolvable. It tends to be an article of faith that contracts actually inhibit opportunism when it comes down to cases (as opposed to the high theory of the New Institutional Economics), and hence constitute “law” between the parties. I disagree, but spelling all that out would take more than a comment to a blog post.

Having said all that, I wish your blog success and long life! It’s now on my RSS feed.

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