Volume 15, Issue 1

This Article examines what form the public/private distinction takes in contemporary legal consciousness. It proposes that while the public/ private distinction is still an important component of contemporary legal consciousness, the content of each sphere, their stability as distinct spheres, and their interaction with each other have significantly changed. This transformation occurred primarily due to the rise of the regulatory state and the increased visibility of the interconnectedness of the spheres due to public ordering of private activity in an age of widespread privatization. The current state of the distinction challenges courts, when these are asked by petitioners to define the proper scope of the spheres and decide on their boundaries. The Article critically examines the Israeli High Court of Justice decision in a prison privatization case, as a case that reflects the mismatch between the traditional understanding of the public/private distinction and a much messier reality in which the private and public spheres keep changing, and intermingling in new ways.

From total rejection to reluctant acceptance and eventually to full acceptance with new justifications, the Chinese attitude towards the public/private divide has undergone several stages in theory and practice. During the early stages of the People’s Republic of China (PRC), Chinese scholars of law and political science firmly rejected the divide between the public and the private as being a distinction made in bourgeois law that should be replaced by a new socialist legal system, which would acknowledge no such difference. Since the start of reforms in the late 1970s, the newly ascendant private sector of the economy called for legal recognition of its status, but due to ideological constraints inherited from the pre-reform era, it was not easy to give meaning to the existence of the private sector. Debates were waged among Chinese scholars over the distinction between the public and the private for the purpose of recognizing private ownership. Eventually, the distinction was recognized. The Chinese case is obviously a very good example to show that such a distinction does play a role in shaping or improving a legal system. The emergence of “social law,” however, has blurred the demarcation between the two, calling for new theorization. The “publicization of private law” and “privatization of public law” have further strengthened the ambiguity with respect to the public/private divide.

Many people recognize that governments can play salutary roles in relation to markets by (a) “overseeing” market behavior from “above,” or (b) supplying foundational “rules of the game” from “below.” It is probably no accident that these widely recognized roles also sit comfortably with traditional conceptions of government and market, pursuant to which people tend categorically to distinguish between “public” and “private” spheres of activity. There is a third form of government action that receives less attention than forms (a) and (b), however, possibly owing in part to its straddling the traditional public/private divide. We call it the “government as market actor” form, whereby government instrumentalities pursue traditionally “public” ends through traditionally “private” means. Inattention to this pervasive form of government action might signal a theoretical blind spot attending the public/private distinction itself. At least as importantly, however, this inattention also denies us a practical opportunity: it prevents our more fully exploiting the government role in question. This Article, part of a larger project, aims to encourage fuller theoretical appreciation and wider practical use of the role we identify. It first offers a provisional taxonomy of recurrent forms that the government market actor role appears to take, affording a wealth of illustrative case studies in so doing. It then envisions additional good that governments might do, simply by extending their market acting roles to spheres in which they have yet to be fully utilized. The Article concludes by suggesting next steps in both theorizing and employing the government market actor role.

In his canonical articles Against Settlement and The Forms of Justice, Owen Fiss argues that the erosion of civil litigation harms the deliberative process and the elucidation of public values in society. By revealing the hidden public dimension underlying not only public law litigation, but also the adjudication of private law disputes, Fiss’s argument can be conceptualized as posing a challenge to the public/ private distinction. At the same time, Fiss’s critique reinforces the public/private divide by placing settlement and civil litigation on either side of the borderline. In this Article, we set out to dispel the prevalent depiction of settlement as inherently private, and to challenge the binary logic of the private/public distinction as it is understood to apply to settlement. We show how settlements have the capacity to fulfill each and every one of the public functions attributed to the civil trial, including the elaboration of norms, the discovery of facts, the facilitation of democratic participation, and the creation of public narratives. The functional, process-oriented approach we offer depicts settlement as a device that does not stand in opposition to the promotion of rule of law values - but rather as an institution that enhances the articulation of public norms. Our discussion progresses against the background of three settlement arenas: settlement in the classic civil suit context, structural reform suits, and transnational Holocaust litigation.

In 1861 John Stuart Mill published Considerations on Representative Government to discuss the justifications for democracy. In the third chapter of this book he explores why a government run by a Good Despot is unacceptable. In this Article we revisit Mill’s critique of the Good Despot to problematize the contemporary exercise of authority and influence by multinational companies, especially in foreign countries. Inspired by Mill, we redefine the problem of privatization. The challenges of privatization are mostly defined by essentialist concerns (whether certain governmental functions must remain the province of public authorities) or a consequentialist critique of the problematic outcomes of privatization (how it influences human rights or causes environmental damage). In this Article we shift the attention to the democracy losses associated with the privatized decision-making process. We identify the growing influence of private, particularly foreign, actors as a democratic problem of exclusion of persons from decision-making processes on issues with constitutive influence on their lives, and explore the different aspects of what we regard as an acute problem of democratic deficit. The redefining of the problem as one of process and democratic deficit allows us toconclude with a critical assessment of the potentials and limitations of contemporary attempts to solve it.

The idea of workplace democracy is to apply public-related institutions in the sphere of private enterprise, thereby creating a process of isomorphism between public and private entities. One formulation of this idea argues that the workplace is a community in which democratic values and institutions should be implemented, while another formulation claims that the organization of the workplace is important to the quality of democracy at the state level. Despite the host of justifications and a plurality of institutions that are associated with workplace democracy, there has been a gradual move away from tying democracy and work in favor of a liberal script that acknowledges the need to prescribe some employment-related rights, but keeps the private and public separate. The Article attributes this change to two processes - marketization and globalization, both affecting the sense of community in which democratic practices prevail, whether the place of work or the state. However, the Article identifies a growing reliance on process-based law that governs work. Process-based law integrates proceduralism - that is, norms that require public values such as due process, visibility, accountability and deliberations; and layering - the congruence of norms at multiple levels that engage a diverse set of agents. This new emphasis in labor law, broadly defined, provides an opportunity for reintroducing democratic values and practices throughout different spheres that are associated with the world of work.

New modes of environmental regulation are said to have transcended the public/private divide. These new regulatory schemes - referred to as non-coercive orderings, self-regulation, co-regulation, metaregulation and social regulation - set aside the formal nature of the regulating entity, the regulated entity, and the tools of regulation. Instead of asking whether the means, objects and formulators of the regulation are public or private, the focus lies on the substance and effectiveness of the regulation in mitigating environmental harms. In this Article we argue that despite these claims, often advanced by new governance proponents, the public/private divide in in fact alive and well, informing and impacting the ways in which various regulatory schemes are justified and legitimated. We exemplify this argument through an analysis of the role of three entities in international environmental regulation: the state (and its perception as sovereign), local governments, and civil society entities (both NGOs and business corporations). This Article then suggests three consequences of the persistence of the public/private dichotomy and its denial: it produces a “tilt” towards the private; it tends to hide conflicts and disagreements, projecting an image of a frictionless world; and it prevents an imagination of a different world that transcends the structure of social life embedded in it.

This Article uses major and recent CJEU labor law case as a springboard to examine and critique the CJEU’s doctrinal frameworks, conceptual constructs and decision-making practice. It analyzes the institutional, legal, political and other consequences of the CJEU’s Viking judgment as a means of critiquing the Court’s increasingly profligate yet systematic approach to fundamental rights and freedoms. The resulting description claims that the European legal order is increasingly characterized by omnipresent layers of powerful judges who explicitly “balance” fundamental rights and freedoms to resolve hotly contested social issues, even when those issues manifest themselves as private law disputes. The Article explains how the imposition of the CJEU’s “fundamentalist” framework impacts powerfully upon, and increasingly threatens, the domestic labor law regimes of Europe. The Article leverages this example to advance several general critiques of the Court’s increasingly dominant “fundamentalist” approach. The Court’s approach fails to treat fundamental rights as fundamental in any meaningful sense. It tramples unnecessarily on important institutional and jurisdictional distinctions, mistakenly redistributing competences not only between Member States and the European Union, but also within the Member States themselves. Finally, the Court’s approach increasingly subsumes all domestic institutions and individuals under a single, undifferentiated and ultimately simplistic normative schema that preempts many of the institutional structures and solutions that might - and in many cases, recently did - skillfully govern significant portions of the European legal field.