Colin Bradley (New York University School of Law) has posted “Private Rights” in Public Law (126 Michigan Law Review __ (forthcoming 2026)) on SSRN. Here is the abstract:
Private rights have returned to play a central role in public law after nearly a century in the wild. In the last few years alone, courts have invoked private rights to elaborate the elements of Article III standing, interpret the scope of 42 U.S.C. § 1983’s cause of action, articulate the limits of the administrative state, and give meaning to enumerated constitutional rights. But unlike private law—which has confronted a similar fall and rise of private rights with wide-ranging discussion over their meaning—public law has not been subjected to a fulsome debate about what exactly private rights are. Both proponents and critics of the return of a private rights model of public law adjudication share a basic understanding of private rights rooted in Blackstone’s eighteenth-century writings. But Blackstone’s view fails to capture the full significance of private rights in the common law. Over-emphasizing it muddles the stakes of the return of private rights in public law.
This Article articulates the historical and doctrinal limits of the default Blackstonian view of private rights. Blackstone’s conception of private rights was based on an underlying view of liberty as non-interference that was controversial even when he was writing in the 1760s. Instead, the dominant view of liberty in the common law at the time was the republican view of liberty as independence. That view of liberty supported a distinct republican conception of private rights, which has coexisted in the common law tradition alongside the Blackstonian conception.
After outlining the oft-elided republican conception of private rights and tracing its influence on legal discourse, rhetoric, and caselaw, this Article illustrates its possible implications for public law doctrine. Recognizing the distinction between these two conceptions of private rights casts new light on Article III standing, damages, Section 1983, and adjudication outside Article III courts. This distinction also provides a corrective to the scholarly debates over private and public rights: just as it is a mistake to suppose there was a single unified historical conception of private rights, it is also a mistake to dismiss private rights altogether as inherently confused or obfuscatory.
Highly recommended.