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The New Private Law: An Introduction

This essay is an introduction to a Symposium on The New Private Law. Professor Nice defines New Private Law as including deregulation, decentralization, privatization, and contractualization, and as reflecting a normative regime that both recognizes a distinction between public and private domains and prefers the ordering of the private market to that of public decision-makers. She argues the preference for the private domain seems, at least, to tolerate inequality, and at worst, to reify existing power hierarchies. At the specific level, she describes the debate over privatization of welfare, with proponents claiming it costs less because of greater flexibility and better performance-based incentives while opponents argue it costs more, reduces the quality of services, eliminates expertise, fosters patronage and corruption, and diminishes public accountability. At the broader level, Professor Nice situates New Private Law within jurisprudence by comparing it to Formalism, Law and Economics, Legal Realism, and Legal Process, and Critical Legal Studies schools of thought.