Since the turn of the last century the domain of private law has decreased, as the role of public, procedural, and statutory law has expanded. The standard narrative offers two basic explanations. First, that realism deconstructed private law showing it to be a form of policy-making managed by judges, and second, that as the law of the administrative state becomes primary, the horse and buggy methods of the common law receded.
Contemporary Anglo law presents two complications to this story. First, conceptual analysis of technical private law doctrines plays a critical role in Anglo thought. Second, issues that American lawyers recognize as raising public, procedural, and statutory concerns, are major loci of private law exposition in the Anglo system.
This article argues these two features are related. Realism diminished private law, so that it no longer serves as the ‘general law’ undergirding the legal order. But that function transitioned to doctrines with firmer jurisprudential grounding: public, procedural, and statutory law. In response, American lawyers looked to shore up these areas through their own inward-facing doctrines drawn from conceptual analysis of federalism, legislative and judicial authority, and constitutional structure.
Meanwhile realism had less impact on Anglo private law. It continues serve as the general law and expands to areas American lawyers conceive of as public and statutory domains. Further, even as conceptual accounts of private law are prominent in Anglo discourse, there is little interests in correlative accounts of procedure and statutory interpretation. I conclude that while there may be variation in which area of the law is conceptualized, legal analysis will gravitate towards doctrines seen as most coherent.
Saiman, Chaim, The Domain of Private Law: Conceptual Thought in Anglo American Law (January 27, 2019).