Marc DeGirolami

This paper approaches the public-private law problem by describing what it calls “drift.” Drift is the tendency of what is thought traditionally to be private law to become public (public drift), and the tendency of what is thought traditionally to be public law to become private (private drift). Though it is possible to distinguish public and private drift conceptually, drift is in practice a unified phenomenon: public and private drift go together. Drift is manifested not only in formal, legal developments, but also in the informal processes by which public law frameworks now influence private ordering, private rulemaking, and private relationships, as well as the way private authorities have been entrusted with the responsibility to implement those public law frameworks. The paper describes various contemporary examples of drift, explains drift’s comparative ascendancy today, and speculates about possible future developments for drift. Drift in public and private law may not be driven primarily by anything innate or conceptually necessary in the disciplines believed to constitute private or public law. Drift is instead a political byproduct, the issue of social and cultural anxieties concerning the absence of anything like a common political project, anxieties that drive powerful actors toward manufacturing imaginary commonalities that they press with confounding certitude. The powerful exploit and manipulate areas of law that properly pertain to the public and private domains, repurposing them for new uses, because their regular use is ineffective in achieving their political objectives. The paper deliberately selects examples of drift that exhibit what would be conventionally described as conservative and progressive valences (in the meteoric rise of public nuisance, in the strategy of statutes like Texas’ S.B. 8, in the mixed public-private response to COVID-19, in the controversies about social media speech control, and others) to illustrate the universality of the phenomenon. Drift is a response to a perceived political void or emptiness in which public-private partnerships of powerful actors emerge to fill the void, capture the institutions of power, and coerce people’s behavior into certain ideological grooves.

This essay critiques Professor Martha Nussbaum's book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality. Nussbaum's thesis is that the entire tradition of religious liberty in America can be both best understood and justified by recourse to the overarching principle of equal respect —that “[a]ll citizens have equal rights and deserve equal respect from the government under which they live.” Nussbaum insists that equal respect pervades the tradition and that all other values of religious liberty are subordinate to it. She examines various free-exercise and establishment issues in light of this principle, concluding that the tradition of religious equality is under threat and calling for renewed vigilance in its defense. This essay criticizes Nussbaum's elevation of the principle of equal respect to supreme normative status. It claims that Nussbaum's single-minded focus on equal respect distorts and misunderstands the conflicts actually at issue in many religious liberty disputes. The essay focuses specifically on the inadequacies of her assessment of two prominent religious liberty cases, one in the free exercise and the other in the established context. This essay concludes that there are reasons for deep skepticism about Nussbaum's approach as a comprehensive theory of the religion clauses.