Rethinking responsibility in private law
Private power, through both the empowerment of transnational corporations and the retreat of the state as the primary provider of social goods, has considerably diminished the public’s ability to consistently and effectively shape the public sphere. Current legal doctrine, in the US and elsewhere, remains unequipped to mitigate the consequences of such encompassing private power. A key drawback is the private-public divide, which designates the responsibility for the public interest to public law, while allowing private law to be guided primarily by concepts of autonomy and individual will on one hand, and efficiency on the other hand. Accordingly, the legal norms applied to private businesses focus on liberty and competition, while the more demanding standards of behaviour are applied to state-actors alone.