A Three-Dimensional Approach to the Public-Private Distinction

Once thought to be dead but ruling us from the grave, the public-private distinction remains alive and necessary to adjudication of fundamental constitutional issues as well as issues in, among other areas, corporations and securities law. Unfortunately, the traditional, two-dimensional approaches to public and private result in inconsistencies and, more often than not, are simply chosen for their abilities to dictate a desired result in any given case. By looking instead to the question "Is X public as to Y?" the new framework proposed here enables a thrC?e-dimensional approach to public-private issues. By assessing the relationship between X and Y, the framework categorizes those relationships into: (I) those as a matter of right, (2) those as a matter of privilege, or (3) no relationship-the first two categories defining a "public."