John Goldberg (left) and Henry Smith (right) at the new and interesting New Private Law blog flattered me with a serious and thoughtful response to my earlier post. (This is a version of a comment I posted over there.)
The gist of the response is that I was overstating things dramatically. That is, there is a meaningful distinction between public and private law when it comes to contract law.
To be clear, 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 John and Henry characterized.
First, the definition game IS a lawyer’s game. I suppose if there were a statute passed that said “All law professors 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 on objectivity and subjectivity in contract law) 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 blog posts and comments.
Having said all that, I wish the New Private Law blog success and long life! It’s now on my RSS feed.