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Imagining New LegalitiesPrivacy and Its Possibilities in the 21st Century$
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Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey

Print publication date: 2012

Print ISBN-13: 9780804777049

Published to Stanford Scholarship Online: June 2013

DOI: 10.11126/stanford/9780804777049.001.0001

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Adversarial Legalism and the Emergence of a New European Legality: A Comparative Perspective

Adversarial Legalism and the Emergence of a New European Legality: A Comparative Perspective

Chapter:
(p.154) Adversarial Legalism and the Emergence of a New European Legality: A Comparative Perspective
Source:
Imagining New Legalities
Author(s):

Anthony Sebok

Lars Trägårdh

Publisher:
Stanford University Press
DOI:10.11126/stanford/9780804777049.003.0006

This chapter highlights the cultural contingency of the public/private distinction, contrasting the regime of private and public law in the United States to that in Europe. Using Blackstonian categories, private law is classified as “intrinsically bipolar” because it relies on private actors (plaintiffs) to pursue those who committed wrongs. Private law has prospered in the United States, and civil litigation has increased rapidly. In European nations, the need for private litigation is often eclipsed by generous public rights. In contrast, the realm of public rights in the United States is small relative to many European social democracies: since the 1960s, the trend in the United States has been to promote the private enforcement of public rights. The discussion of public and private rights is also extended to the healthcare debate. Finally, the chapter considers the possibility of convergence, with the European legal system becoming more Americanized and adversarial, and the American becoming somewhat more responsive to public rights claims.

Keywords:   private law, public law, European law, American law, healthcare, litigation

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