Academic journal article Duke Law Journal

The Supreme Court's Theory of Private Law

Academic journal article Duke Law Journal

The Supreme Court's Theory of Private Law

Article excerpt


In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court's recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival.

Our argument is that the Supreme Court's theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment-tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or "public law in disguise."

Part I is a brief overview of how that jurisprudential view came to be, as well as a sketch of a competing view of private law as individual justice. In Part II, we briefly trace the development of the doctrine surrounding the tension between the First Amendment and private law, particularly tort law, and how it helps lead to the view of private law as government regulation displayed in Snyder. We also point out how the intentional infliction of emotional distress tort, the main claim at issue in Snyder, is a particularly poor vehicle for the Court's theory of private law. A relatively recent tort, it was developed by scholars and judges as a means of redress for plaintiffs who had been wronged, but were left without a remedy.

Part III presents the central claims of the Article. We argue that the conception of private law as government regulation in Snyder arises from a combination of (1) the doctrinal tools that judges use in First Amendment cases, (2) the unitary nature of the state-action doctrine, and (3) the influence of instrumentalism, specifically in obscuring the plaintiffs agency and the state interest in redress, and in privileging a particular view of compensation. In Part IV, we present some normative or prescriptive implications of our analysis, and then conclude.



I. Competing Theories of Private Law

     A. Private Law as Government Regulation

     B. Private Law as Individual Justice

II. Snyder and the Speech Torts: A Window into the Supreme
Court's Theory of Private Law

     A. Snyder v. Phelps

     B. Doctrinal Background--First Amendment Versus
State Tort Law

     C. Intentional Infliction of Emotional Distress

III. Unpacking the Supreme Court's Theory of Private Law

     A. First Amendment Doctrine

     B. State Action

     C. Instrumentalism's Influence

       1. Ignoring Plaintiffs' Agency

       2. The Missing State Interest in Redress

       3. Compensation as Social Insurance or Pricing


IV. Normative Implications of Recapturing Private Law

     A. Tinker with Speech Torts, But Do Not Shut Them Off

     B. Take a Considered Look at State Interests and State
Level of Involvement

     C. The Identity of the Plaintiff and the Purpose of the
Litigation Matter



Snyder v. Phelps (1) was the blockbuster case of the Supreme Court's October 2010 Term, and for good reason. It had vivid facts: the father of a slain Marine sued protesters from a church whose mission was to disrupt funerals of soldiers around the country in order to spread their message of the dangers of homosexuality. (2) It featured the sexiest amendment in the Bill of Rights--the First--and perhaps the central principle in American political culture: freedom of speech. But with all of the First Amendment hype, less noticed was the underlying nature of the lawsuit itself, which had nothing to do with freedom of speech. It was the kind of lawsuit brought every day in courts around the country: a private party files a complaint, demands an answer, and alleges that the defendant has wronged him. …

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