Table of Contents

ABSTRACT

If there is a difference between a public and a private right, it is that while a private right may generally be waived by the holder, a public right generally cannot be because the loss would be suffered not only by the party waiving the right but also by the public or a specified class thereof. Because both public and private rights are enjoyed at the individual level, each may be mistaken for the other at that level. In a relatively recent case, Justice Thomas distinguished private from public rights in terms of harms or injuries necessary to sustain claims of justiciability. Yet, Justice Thomas treated a criminal defendant’s right, arguably a public right, by the Justice’s own criterion, as if it were a private right, waivable at the holder’s caprice. The results of the inconsistent treatment is only enhanced if the public right’s mere instantiation is predicated upon a requirement that the holder of the right forgo the right’s protections at the discretion of the duty-bound party. To explain this enigma and to argue to the contrary is the purpose of this note.