Public Laws vs Private Laws.
The United States and all other nations have their own systems of enacting laws for governing. However, there are numerous categories of laws and different laws are enacted for different purposes. Two types are public laws and private laws. This paper addresses the similarities and differences between these types of laws and their advantages and disadvantages. The focus of this paper is the United States, with some examples from other nations.
Both public and private laws go through a similar system for enactment. Congress drafts a bill, which is signed into law by the President. Once enacted, public and private laws are published by the Office of the Federal Register (US Government Printing Office [GPO], 2009). The difference between public and private laws is primarily in their effect (GPO, 2009). Public laws impact the entire society, while private laws affect individuals or smaller groups (GPO, 2009).
There is no official definition of what qualifies a law as private (Beth, 1998). Private laws are designated as such, with the abbreviation ‘Pvt. L.’ before the law number (GPO, 2009). Another key way to identify a private law is by the words ‘for the benefit of’ as part of their official titles, with individuals or groups identified as the intended beneficiaries of the law (Beth, 1998). Some examples of private laws include laws that outline veterans’ benefits, immigration laws that deal with visa classification or naturalization procedures, and laws that set out income tax liabilities (Beth, 1998).
Public laws, which are intended to affect all citizens or society as a whole, are designated by the abbreviation ‘Pub. L.’ before the law number (GPO, 2009). One recent example of public law is the American Recovery and Reinvestment Act [ARRA] of 2009. The ARRA, better known as the stimulus package, aimed to benefit the United States as a whole, including all of its individuals. The ARRA (2009) specifically states that its goals are to preserve and create jobs, assist the unemployed, help stabilize state and local economies, and invest in infrastructure. These goals indicate the broad level of impact that is indicative of a public law. Public laws are also common in the public health area (Hunter, 2007). Public laws in the health field facilitate programmes such as planning for an infectious disease epidemic or disaster management (Hunter, 2007).
International law also has public and private law designations. Private international law deals with resolution of conflicts, including domestic sources of law (De Boer, 2010). On the other hand, public international law deals with broader aspects of the global community, including the impact of international organizations such as the United Nations (De Boer, 2010). International law is not the focus of this paper, but it is important to note that the designations of public and private laws may also refer to the international law arena.
Public and private laws each have their purpose in government. However, there are advantages and disadvantages to each. Depending on the goal of Congress in enacting the law, public laws are most advantageous when a large group of people need to be impacted. In the previously cited examples of the ARRA and public health, public laws were best because they created broad impacts. On the other hand, if private laws had been used for a similar goal, the impact would not have been as wide. For example, had a specific group of people been named in the customary ‘for the benefit of’ language implemented by private laws, there would undoubtedly be individuals left out. In the case of ARRA, the economic downturn had a broad impact and unintentionally excluding a party from the benefit may have impeded the intended benefit for the nation.
Private laws, however, are more advantageous when there are specific parties involved. An individual can initiate a court action to protect rights imparted by private laws, which is not necessarily possible with public laws (GPO, 2009). Take, for example, the private laws dealing with veterans’ benefits (Beth, 1998). A veteran who is not getting benefits that should be due under these private laws would be able to initiate an action for benefits. On the other hand, there is no individual right to sue with respect to the preparation for an infectious disease outbreak. Private laws have their place in providing individuals with the ability to protect their statutory rights, but the same protection is not extended to public laws.
While each has their role and each is more advantageous in some areas, that does not mean they are perfect. There are problems with both private and public laws. While private laws allow for individuals to be able to sue in order to protect their rights, they fuel the notion that the United States is a litigious society. Private laws create causes of action for lawsuits. In that respect, a disadvantage of private laws is that they may go too far in creating individual rights that can be litigated.
Just as private laws can go too far in allowing lawsuits, public laws may go too far in disallowing them. Environmental law is one area of public law that has seen many failed attempts at lawsuits by individuals. Cases such as Lujan v. Defenders of Wildlife (1992) pointed out the difficulties for individuals who want to initiate lawsuits to help protect the environment. In Lujan v. Defenders of Wildlife (1992), the plaintiffs wanted a change in regulation in order to preserve important ecosystems and wildlife habitats. However, the court did not allow them to bring their own action because the necessary elements for a private individual or group to sue were not present (Lujan v. Defenders of Wildlife, 1992). Despite the fact that individuals or groups may have a vested interest in the state of the environment, the legal options for pursuing that interest is limited with public laws.
Public laws may have a built-in remedy to that problem with the different treatment of states. A more recent environmental law case allowed the state of Massachusetts to sue the Environmental Protection Agency to address alleged regulatory deficiencies in dealing with global climate change (Welti, 2008). While there is an interest that can be protected in court when a state wishes to sue, the individuals are still left out (Welti, 2008). Even though individuals have an interest in the environment, they do not have a right for which they can go to court to ensure protection. Public laws also have a similar deficiency in some areas of public health law. For example, individuals have an interest in the protection of public health in the United States, but not all laws will allow them to sue. This embodies a key disadvantage in public laws: individuals have no means of protecting their interests.
On the other side of that argument is that, perhaps, individuals should not be able to pursue these interests in court. Congress has been given the power to create laws and some remedies are possibly best left to Congress to assess. For example, the disaster management programmes created by the federal government probably took a lot of research and specialist knowledge in order to designate the best plan. Allowing individual suits criticizing federal regulations could impede federal disaster planning programmes by draining resources and using funding towards litigation (Hunter, 2007).
With an area such as disaster management, it may be best that federal government is allowed to act without having to worry about individuals bringing lawsuits to change the regulatory scheme. Some areas of public law, in order to be most effective, may need to operate independently of individual rights. In this regard, the federal government would be choosing what is best for the nation as a whole without getting caught up in the concerns of a few individuals within the nation.
Other nations have also struggled with the balance between public and private laws. One allows greater federal control while the other allows for greater individual rights. In Indonesia, the government saw a transition into a mixed model of public and private laws in the area of land rights (Daryono, 2010). Unfortunately, even transitioning into a seemingly better model is not without its problems. Indonesia has faced some uncertainty and also identified deficiencies, such as a government strong enough to handle public aspects and a court system equally strong enough to handle the private aspects (Daryono, 2010). These must be addressed in order to make the balance work.
The use of public laws and the use of private laws have supporters and critics (Welti, 2008). Since each of these types of laws has its place, the key may be a balancing act between the two. The advantage of private laws, in creating individual legal rights that can be protected in courts and the advantage of public laws in allowing the federal government the ability to act in the best interest of the nation without interference, conflict with one another. The disadvantage of each type of law can be addressed by increasing the utilization of the other type.
The main concern in using either public or private sector laws is ensuring that they do not go so far as to facilitate a government that acts without potential ramifications in court if there are citizens that are harmed or, on the other hand, in a litigious society incurring large expenses as a result of numerous individuals able to and willing to bring regular lawsuits. Private and public laws must be balanced in order to create the best administration of government.
American Recovery and Reinvestment Act, Pub. L. No. 111-5, 50 Stat. 664 (2009).
Beth, R. (1998). Private Bills: Procedure in the House (CRS Report for Congress). Retrieved November 12, 2010, from http://www.rules.house.gov/archives/98-628.htm
Daryono. (2010). Transformation of land rights in Indonesia: A mixed private and public law model. Pacific Rim Law & Policy Journal, 19(3), 417-457.
De Boer, T. (2010). Living apart together: The relationship between public and private international law. Netherlands International Law Review, 57(2), 183-207.
Hunter, N. (2007). Public-private health law: Multiple directions in public health. Journal of Health Care Law & Policy, 10(1), 89-119.
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
U.S. Government Printing Office. (2009). Public and Private Laws: About. Retrieved November 14, 2010, from http://www.gpoaccess.gov/plaws/about.html
Welti, T. (2008). Massachusetts v. EPA’s regulatory interest theory: A victory for the climate, not public law plaintiffs. Virginia Law Review, 94(7), 1751-1785.