Recent events offer a grim picture of the future of public law. In particular, President Trump’s assault on the administrative state seems destined to hamper the ability of agencies to protect the public in familiar areas such as drug safety, auto safety, environmental protection, and consumer protection.
It is for this reason that a recent paper by Yotam Kaplan, Adi Libson, and Gideon Parchomovsky, entitled The Renaissance of Private Law, is especially timely. Their thesis is that private law can partially substitute for some of the functions performed by public law, namely the regulation, supervision, and sanctioning of private actors—especially large corporations which typically escape control by the state, and, even when they do not, ignore civil fines and penalties.
Kaplan, Libson, and Parchomovsky (“KLP”) begin their article at a familiar place. They observe that public law, for a variety of reasons, is less effective than ever before in handling serious public risks. They do not begin with a list of failures, perhaps because these are so obvious, but throughout the article they mention various examples of private sector activity left unchecked by regulators: the opioid epidemic, gun violence, electronic cigarettes (P. 4), climate change (P. 19), the rise of cryptocurrency and AI (P. 32), and social media’s production of disinformation (P. 34).
KLP identify multiple forces—some familiar and some new—that prevent public law, in America at least, from addressing activities posing risks of large-scale harm: (1) Government legal action is sometimes hard to initiate, not because the state lacks resources, but because it lacks the will to challenge and annoy powerful constituents (P. 9). (2) Decisionmakers in government are relatively easy for powerful constituents to access and influence (P. 13), in part (3) because these powerful constituents themselves were once regulators or the regulators hope for employment in the private sector (P. 15). (4) Specialization leads to myopia (P. 16), and (5) centralization leads to vulnerability to focused attacks by highly motivated private sector actors. (6) Although the state has fearsome investigative powers, it can miss important information that is held by private actors who are not motivated to volunteer it (P. 19). (7) In contrast to private law, regulation requires a large ex ante investment (P. 21). (8) The Constitution of the United States may specifically restrict the power of public law to interfere with risky behavior in the marketplace (P. 29). KLP illustrate this point by noting that the Second Amendment has hamstrung public law efforts to address gun violence.
In contrast, KLP claim that private law has proven nimble where public law has been weak and ineffective. Private law is, well, private, and so it is not vulnerable to pressures from powerful constituents, or lobbying efforts, or the allure of the revolving door. Similarly, KLP make a virtue of decentralization, which is a hallmark of private law practice. They argue that focused attacks are less likely to paralyze the plaintiffs’ bar, and that its networked nature increases the likelihood that useful information can be cheaply accessed from a variety of far-flung sources.
KLP argue that two key changes have recently occurred that provide private law with a distinct advantage over public law. First, compared to the past, there is a “proliferation of information” that alters the balance of power between public and private law. Second, several successive administrations, in conjunction with important Supreme Court rulings and political polarization, have significantly rolled back the regulatory state. In other words, compared to the situation decades ago, private law in 2025 looks good by comparison to public law.
The article is guardedly optimistic. It suggests that there are some green shoots of life in the garden of the public interest, but they are growing in an unexpected place—tort law. Given the consensus that tort reformers triumphed in the last few decades in significantly limiting tort liability, the article gets its impact from making the following counterintuitive claim: tort reform in the 1980’s and ’90s did not finish off the plaintiffs’ bar, and in fact, if anything, the plaintiffs’ bar has come roaring back.
My main concern about KLP’s article is what it does not acknowledge: that the putative “renaissance” of private law has only come about through a rearrangement of private law. KLP report, but do not reflect, on the fact that almost all of the private law campaigns they put forward as a substitute for public law involve a very unusual type of private law claim, namely public nuisance claims brought by state and municipal plaintiffs, often with the assistance of plaintiffs’ attorneys working on a contingent fee.
While every private law cause of action is distinctive, public nuisance is very different from the rest of tort law in significant ways. First of all, the wrong alleged is suffered not by a private plaintiff, but by a legal fiction dubbed “the public.” Second, the wrong is not the interference with an interest recognized anywhere else as a protected interest in private law, such as bodily integrity, chattel, land, economic interest, emotional tranquility, or reputation. Rather, it is an interference with something called “public right.” Third, and finally, the remedy is technically not damages (either compensatory or punitive) but an injunction or compensation to offset the costs of abating the nuisance.
Even if public nuisance can secure, through its remedies, the same outputs that public law once could (but now fails to) produce, it will do so only by reproducing many of the same features of public law that led to the dire situation in which we now find ourselves.
KLP frequently emphasize the role of the private plaintiff in private law. Private law, they observe, is directly accessible to “unorganized citizens in ways that critically distinguish it from regulation” (P. 13). Public nuisance suits may be many things, but they are not the product of “unorganized citizens.” In response to mass harms, they are almost always brought by public actors.
To be sure, the decision-making process that leads to a state or municipality filing a public nuisance lawsuit is different from the decision-making process that leads to a regulator issuing a regulation or even filing a lawsuit to enforce a regulation. But the proximity of both types of legal action to the state as the focal point of the litigation should put us on notice that public nuisance may have more in common with public law than with private law. And that only leads to more fundamental questions, such as, why aren’t the public-law actors who bring public nuisance suits subject to the same disadvantages so powerfully illustrated by KLP in the first part of their article.
KLP might respond that public nuisance litigation shares two important features with classical private law litigation. First, the standards of conduct to which the litigants (whoever they are) seek to hold businesses depend ultimately on the legal judgment of judges, and not on the policy choices of political actors, such as regulators and legislators. Second, the litigants are not only the public law actors in whose name the lawsuits are brought, but also the professional private sector lawyers who develop the legal theories upon which the suits are brought and who fund the lawsuits.
As to the first point, it is true that KLP assert that adjudication is different from regulation because it is addressed to “generalist courts” (P. 17) staffed by personnel “insulated” from the influence of business interests (P. 15). This view of judges as engaged in the principled elaboration of common law doctrine is attractive, but it feels slightly anachronistic in light of the political polarization KLP describe later in the article (Pp. 37-38).
The second point is valid as a descriptive matter, but I think it leaves open more questions than it answers. It is true that the lawyers who brought the major public nuisance lawsuits celebrated by KLP are state actors who are not captured by the business interests that KLP fear have captured other state actors. But they are not the party-in-interest, either. Plaintiffs’ lawyers who promote the ends of plaintiffs are agents of parties-in-interest, whether those parties be injured individuals, class members, or a governmental unit. Can we be sure that these agents, in their pursuit of the ends of their clients, will always pursue the public interest? After all, the argument in the article was not simply that private law is capable of incentivizing lawyers to bring lawsuits. That point needs no proof. The argument is that new forms of private law have emerged which have the effect of producing the same public goods as regulation, and that in a time of regulatory failure, these new forms of private law should be embraced and celebrated.
KLP have produced a very rich article that deserves careful attention. Their argument—that there are green shoots of private law in the midst of public law’s winter of retreat—is both hopeful and intriguing. Time will tell as to whether they are correct.
