Public/Private

[andie nachgeborenen <andie_nachgeborenen@xxxxxxxxx>]

Maybe I've read to much legal theory, but I can't for the life of me get a
handle on the public/private distinction when it comes to how the State
delegates property and control rights over productive assets. What is
private about a grocery store, or a traffic jam or a lawsuit or a
credit/debt contract or a hospital emergency room, the list goes on and
on...........

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Probably you have read too much such theory. It's fascinating to watch the courts wrestle with this issue in the line of cases on state action descending from Shelley v. Kramer (holding that racially restrictive housing covenants are unenforceable in court under the 14th Amendmenf). The courts don't want to say that anything that might require some official action -- the use of a notary public, a license for liquor, a zoning permit -- is state action. (This is significant because without state action, comstitutional protections do not kick in.)  But it's very hard to see any principled rule underlying the cases. The Warren court tended to find state action under Jim Crow. The Burger and Rehnquist courts, not.

Cass Sunstein is very good this topic -- public/private, i mean. look at his The Partial Constitution. I actually commend it to all who have any interest in the question of property rights.

 

jks

 

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