The New Private Law—Harvard Law Review Symposium — Dan Kelly

Post by Dan Kelly

I am grateful to John and Henry for inviting me to contribute to the New Private Law Blog. Several of the initial posts on this blog, as well as recent posts on other blogs, have raised the question of “What is private law?” (One might also ask: “What is new private law?”) These questions are interesting and important.

As background, I would direct interested readers to several articles from the 2011-2012 Harvard Law Review Symposium on The New Private Law, which were subsequently published in the May 2012 issue of the Harvard Law Review. The symposium includes an introduction by John Goldberg; articles by Shyam Balganesh on copyright; Henry Smith on property; Stephen A. Smith on remedies; and Ben Zipursky on torts; and responses by Abraham Drassinower and Richard Epstein (both responding to Shyam), Eric Claeys and Tom Merrill (both responding to Henry), Emily Sherwin (responding to Steve), and Keith Hylton and John Oberdiek (both responding to Ben).

In particular, I would draw your attention to John’s Introduction: Pragmatism and Private Law, which discusses the definition of both “private law” (see excerpt below) and “new private law” (see Part IV, pages 1651-1663):

Like many legal concepts, “private law” has recognizable referents yet eludes precise definition. Private law defines the rights and duties of individuals and private entities as they relate to one another. It stands in contrast to public law, which establishes the powers and responsibilities of governments, defines the rights and duties of individuals in relation to governments, and governs relations between and among nations.

Private law includes the common law subjects that have long been central to U.S. legal education – contracts, property, and torts. But it is not limited to those subjects, nor to common law. Statutory fields such as intellectual property and commercial law fall within private law. So too do areas of law now mostly neglected in U.S. law schools, such as agency, unjust enrichment, and remedies.

2 thoughts on “The New Private Law—Harvard Law Review Symposium — Dan Kelly”

  1. Dan:

    I have to confess — I still don’t understand why corporate law (let alone employment law) is excluded. The definition in your excerpt from John’s introduction would seem to include business organization law, including corporate law, since it “defines the rights and duties of individuals and private entities as they relate to one another.”

    In their response to Stephen Bainbridge, Henry Smith & John Goldberg state: “Perhaps more to the point, corporate law, family law, and employment law are private law, but they are such defined fields unto themselves that they are not a primary focus of what we are calling the New Private Law.” That seems to be just drawing arbitrary lines. After all, isn’t IP a “defined field” unto itself? Sure, IP is close to property, but then business organization law is close to agency. I don’t mean to be obdurate, but I do think the category is somewhat flawed here, and after all–categorizing is a big part of what we do.



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