On October 11 and 12, the Law School hosted “Public and Private, Beyond Distinctions?” a conference sponsored jointly with the Tel Aviv University Buchman Faculty of Law. The two schools are engaged in ongoing collaboration, including student and faculty exchanges, joint research and publication, and several conferences. In June 2010, scholars from both schools attended a conference in Tel Aviv whose papers were published in Cornell Law Review. The papers presented at the Cornell conference will be published in the January 2014 issue of Tel Aviv’s Theoretical Inquiries in Law.
“It all started with the dreaded moment when the dean comes to your office and says, ‘How would you like to organize…’” recalled Cornell’s Mitchel Lasser, the Jack G. Clarke Professor of Law, who orchestrated the conference with Tel Aviv University’s Roy Kreitner and Hila Shamir, “…and then the sentence actually ended pretty well,” he added.
Shamir, who is serving as a visiting professor at Cornell Law for the fall term, kicked off the program with a presentation of her paper, “The Third Globalization of the Private/Public Distinction.” After a historical overview of the public/private distinction in classical legal thought and subsequent realist critiques, she examined its status in the current legal moment, focusing on implications for the welfare state. As a case study, Shamir presented the Israeli Supreme Court’s controversial 2009 decision declaring prison privatization unconstitutional, which she viewed as a missed opportunity to acknowledge the dynamism between the public and private spheres. In commentary following the presentation, Cornell’s Michael Dorf, Robert S. Stevens Professor of Law, raised further questions about public/private dynamism and hybridization.
The session continued with Lasser’s paper “Collapsing Distinctions: The ECJ’s Viking Jurisprudence,” a scathing critique of a decision by the European Court of Justice. Observing that the court had turned a labor dispute between a Finnish company and its workers into a simplistic comparison of fundamental rights and freedoms, Lasser asserted that the “unabashedly powerful” court has shown disastrous insensitivity in its absorption of subsidiary legal domains. Commentator Ori Aronson, of Bar-Ilan University in Israel, probed issues of the ECJ’s mission and capacities, as well as the consequences of more specialized adjudication.
Most papers found a blurring of the traditional public roles of government and the private roles of business, families, and individuals. For example, Tel Aviv University’s Guy Mundlak called for a revitalization of workplace democracy, in which the quintessential public concept of democracy applies to private workplaces. While recognizing that some forms of workplace democracy could not survive the gaze of economic sobriety, Professor Mundlak found important guidance from the all-affected principle that those affected by decisions should have a voice in their creation. Dean Schwab, commenting, emphasized that all employment regulation, even of the private workplace, involved public policy. Still, he said, Americans were reluctant to have the privacy rights of public-sector workers necessarily spill over into the private workplace.
Other conference participants included Tel Aviv University Professors Eyal Benvenisti, Leora Bilsky, Talia Fisher, Doreen Lustig, and Issi Rosen-Zvi; the London School of Economics’ Jacco Bomhoff; and Cornell Law Professors Josh Chafetz, Robert Hockett, Bernadette Meyler, Jens Ohlin, Aziz Rana, Laura Underkuffler, and Xingzhong Yu, as well as post-doctoral fellow Sergio Latorre.
“The public-private distinction is an important topic that showcases how well the Tel Aviv and Cornell faculties mesh,” says Schwab. “Scholars and practicing lawyers perennially debate the distinctions between public law (traditionally seen as the rules between citizens and their government) and private law (rules governing relations among private citizens), and indeed debate whether there is a meaningful difference between public and private law. This symposium provides fresh perspectives and examples on the question.”
-- Owen Lubozynski