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Abstract

This essay begins by situating the distinction in history generally and in American legal thought. Its historical aspect seems important because it suggests that the distinction is not predetermined—it is historically and culturally contingent. That fact has been largely ignored in the American legal academy, and among most of the judiciary it is all but outright socialist treachery to suggest it. The essay moves on to consider Radin's work itself. The prominence of the distinction is relatively obvious in some of her work on technological marketing and design issues, but I will suggest that in fact it runs quietly just beneath the surface of all of her work.An important piece of this discussion will be to address the general philosophical stance Professor Radin has taken throughout her career—what she has described as her “Deweyan pragmatism.” I expect she will say that much of my critique is off the mark for failure to understand the pragmatic perspective. In fact, I fear that grappling with any specific problem in Radin's work threatens to become a grappling with her pragmatism, because the pragmatist will say that my critique is a generalizing one—it attacks a general principle—whereas pragmatists ask questions only on a case-by-case basis, and have neither faith nor concern for arguments made in the abstract. I hope to avoid that as much as possible. Therefore I will do my best to take Radin's pragmatism at its word, understanding it only according to what she has said about it, and presume it to be uncontroversial—as I expect Radin would put it, I will “bracket” all such matters—and focus only on the specific question of the public-private distinction. I do this in part because, with due respect, “pragmatism” is so loose and slippery that to confront it directly is to invite inevitable (and in this case, I think, unhelpfully distracting) digressions about what pragmatism is and what the particular pragmatist did or did not say about it at some point in the past. But this is also a matter of simple fairness and an effort not to be misunderstood as making criticisms I do not intend. In that spirit, it is only fair to add that both Radin's pragmatism and her views on public-private must be pieced together from writings scattered across twenty-five years of work. My rendition of it therefore will be at best a bric-a-bac rather than a living and evolving system of thought. It is only “[a] static interpretation [that] reads an author's later work in light of theories or conceptions laid down in her earlier work, though I fear it is also the best I can do. Ultimately, in any case, the heart of the essay is in Part III. There I will take the distinction head on, address Professor Radin's approach to it, and suggest why it is an important problem in her work. Namely, the distinction is more than just a semantic peculiarity of significance only in judicial opinions. It plays a quietly profound legitimating function in society, effectively obscuring maldistributions of power of very great significance to the lives of human individuals, and therefore goes to what I believe has been the core of Professor Radin's work throughout her career.

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Symposium: Cyberpersons, Propertization, and Contract in the Information Culture

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