Utah Law Review, Vol 2008, No 2

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A THREE DIMENSIONAL APPROACH TO THE PUBLIC-PRIVATE DISTINCTION

Paul M. Schoenhard

Abstract


Once thought to be at the very core of our republic, the public-private distinction has lost its ability to distinguish. This Article addresses the shortcomings and failings of the public-private distinction, not as a concept, but as it has been approached. It then offers a principled, and more adaptable, framework by which we may classify public and private. Specifically, this Article advocates a three-dimensional approach to the public-private distinction, asking the question ";Is X public or private in relation to Y?"; instead of the traditional,
two-dimensional ";Is X public or private?"; Focusing on relationships, this framework draws a boundary line between rightholders and privilegeholders, on one side, and others—relationships that are merely permissive or entirely nonexistent—on the other.

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