Paul Schoenhard is a graduate from Harvard Law School and he focuses his practice on patent litigation in federal courts. He also has a technical background in mathematics and computer science. Paul’s litigation experience spans cases relating to consumer electronics, computer software, internet-related technologies, telecommunications, and semiconductors. In addition to his active practice, Paul frequently publishes and lectures on topics relating to intellectual property. He has served as a visiting professor at the University of Utah, S.J. Quinney College of Law, and is currently serving as a member of the adjunct faculty at American University, Washington College of Law and also works as an associate at Ropes & Gray LLP. This article which is written in the backdrop of the United States constitution advocates a three dimensional approach required for the understanding of the private public divide. The author strives to think out of the box with the quintessential question “Is X public/private in relation to Y?” instead of the traditional two dimensional question “Is X public or private?” He is a strong follower of Duncan Kennedy who believed that the private public distinction although dead it still rules us from the grave. Earlier the public and the private domain where easy to identify and differentiate.
In Dartmouth College v. Woodward, The Supreme Court addresses the public/private divide in corporations. Public corporations are such as only founded by the government for public purposes where the whole interest belong to the Government. If, therefore the foundation is private the corporation is private however extensive the uses maybe to which it is devoted. But now such a distinction is no longer cut and dried. The author proceeds with the hope that the public private divide is still alive and kicking. He asserts that it is human nature to classify things. By the age of two, children understand the concept of ‘mine’ and ‘yours’. Classifying tangible items is a pretty simple job. The real hassle arises when we need to classify intangible items like property into public/private.
There are round holes but there are square pegs all around. According to the author, property can be classified into two types- (i)Quasi- Public Property- The property in this classification is privately owned but it is open to the public. The more an owner opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. * Marsh V. Alabama in which the Supreme Court addressed the public and private character of Chickasaw, a company owned town. Could the privately owned ‘town’ be considered as a public property? Black J., who pronounced the majority opinion asserted that private property could come into the public domain in the following situations: • By government declaration.
• Property may become public due to government’s inaction in that particular domain- principle of dormant state actor. • The public at large perceives the property as being a public property. • When everything else fails, courts depend on the notions of fairness and equity. (ii)Quasi- Private Property- The property though government owned it is not open for public use. For example access to both military installations and prisons is severely limited. *In International Society for Krishna Consciousness V. Lee, whether an airport was a public forum or not was in question. The airport authorities prevented the solicitation of money within the airport terminal. The High Court struck down the view of the District Court who termed it as a ‘quintessential public fora’. Held that the terminal cannot be considered as a public fora because it would cause unnecessary hassle to the passengers if they were interrupted in such a narrow space. Further if one entity was given permission to promote its propaganda, it would be akin to leaving the Pandora’s Box open for such other groups. FIFTH AMENDMENT
The article has taken an interesting turn as the author has touched upon the touchy field of ‘Takings Clause’. This clause enumerates that private property cannot be taken for public use without just compensation. The Takings Clause thus explicitly questions both what qualifies as ‘private property’ and what amounts to ‘public use’. The steady erosion of the ‘public use’ requirement- shifting the requirement from public use to public purpose- has only exacerbated the need to define a consistent public-private boundary line. The following case clearly shows that the criterion of ‘public purpose’ should be answered in order to classify any property as public property. *Berman V. Parker, the Supreme Court considered whether the taking of private property for private redevelopment was sufficiently public to comport with the public use requirement. The property redevelopment and neighborhood revitalization were declared as the public purposes and thereby public use behind the exercise of the government’s eminent domain. The Public- Private Distinction in Three Dimensions:
Towards the end of his article, the author discusses the idea of the three dimensional approach. This approach acknowledges that all things and all actors exhibit both public and private characteristics. It also helps us determine how the characteristics should be sorted. The author has divided the distinction into three phases i.e., (i) An actor or property- an independent variable (X) – an individual (ii) An authority holder relative to X- another independent variable (Y) – the government (iii) publicness/privateness- our dependent variable (Z)
Taking an example of a refrigerator, the author says that the owner of the same has exclusive rights to its contents and he can also prevent others from consuming the same. There are also those sets of people who potentially have access to your fridge i.e., close friends, neighbors etc. but would you also extend the same courtesy to your plumber, your landlord etc? Every property and every actor is public as to some and private as to others.
The author has taken into consideration the still unexplored field of three dimensional approaches to the public/private distinction. The traditional understanding of the public and private domain has been torn down in the wake of changes in the definition of state and the extent of its activities. He introduces a new concept of ‘to whom is it public/private’. Hence he promotes the process of making a distinction in a more descriptive three dimensional realm. I agree with the author when he says that nothing can be classified as strictly public or strictly private. This is not an area where black is black and white is white. There are lots of gray areas in between too. The author has meticulously traced the history of the public/private divide from John Locke’s ideals of individualism, autonomy and privacy and has linked it to the state of public/private divide. The author has also analyzed the public/private divide in a different perspective. There has been a deep shift from public use to public purpose. Earlier it was believed that if the property had a private owner it was private and vice versa. But the same analogy does not hold true now. The boundaries of the state are not confined to only a certain territory anymore. The relationship between the state and the individuals has also undergone a radical change and as a result apart from the ownership question we also need to consider the purpose for which the land is used for. CRITICAL ANALYSIS
However there is a flipside to the story. The author has harped upon the Takings Clause mentioned in the Fifth Amendment to the U.S. constitution. He believes that individuals will just hand over their properties for public use in a silver platter without any revolt. But that is not true. The history of any country is smeared with revolt and revolution by the people against the autocratic rule of the government. Hence I feel that the author has erred by not considering individual revolt. The author has also incessantly written about municipalities. He has invoked Dillon’s rule which states that municipalities are creatures of and exist at the pleasure of the state. According to me this has no bearing on the article. The article would have been better off if the author had not taken this particular aberration. The author has not completely whetted the reader’s appetite regarding the concept of eminent domain.
The concept is still hazy to me. Apart from being circumlocutory, the writing style of the author is a little haphazard as he meanders his way through corporate law, municipal law and then he jumps back to the public/private divide. Although the author has done a fine job of dividing property into quasi-public and quasi-private, he has failed to give a proper connotation to the term quasi- public. Hence the term is used as a catch-all phrase which includes anything and everything inside its purview. Towards the end of his article, the author has mentioned three entities who exist in the three dimensional approach to the public/private distinction i.e., the rightholders, the privilegeholders and the others. The first two appears to be in the public domain but what about the phrase ‘others?’ The reader is left wanting for more as that particular phrase has not been adequately defined.
Once thought to be dead but still ruling us from the grave, the public/private distinction remains alive and necessary for the adjudication of fundamental constitutional issues as well as issues in corporations and securities law. Unfortunately the traditional two dimensional approaches to public and private have resulted in a number of inconsistencies. The author has broadened the scope of the subject by incorporating a new framework which enables a three dimensional approach to public/private issues. I agree with the author’s approach towards the distinction but I wish he would have elaborated more on the subject. I being a reader am left up the creek without a paddle.
 Dartmouth College V. Woodward 17 U.S. (4 Wheat.) 518,668-69 (1819)
 Marsh V. Alabama 326 U.S. 501,502, 505 (1946)
 ISCKON v. LEE 505 U.S. 672, 674-675 (1992)
 Berman V. Parker 348 U.S. 26, 29-31 (1954)