So What is New in the New Private Law? – Yotam Kaplan

Post by Yotam Kaplan

Recent posts by Eric Claeys, Patrick Goold and Andrew Gold highlighted the centrality of analytical and conceptual jurisprudence to the NPL project. This focus on the more traditional aspects of legal argument portrays the NPL initiative as a reconstructive one, novel mainly for reinvigorating methodologies considered by many to be dated and unsound. The blog also sparked a lively conversation on the meaning of the term private law, a fact that in itself shows something new is about (as noted by the editors, any explicit focus on private law is novel, considering the current prevalence of private law skepticism). More generally, the ambitious title of the project (which generated some amusing expressions of ‘outrage’), expressly urges us to consider the potential for something new. And yet, scholars have generally demonstrated caution in making sweeping claims for the novelty of the NPL framework. This is probably a wise choice, as level-headed understatement usually is best. So, just to stir things up, I shall risk some overstatement.

The New Private Law is new in recognizing (and calling for) a holistic and systematic theory of private law. First, the New Private Law is holistic, in the sense that it encourages a multidimensional exploration of private law. This is John Goldberg’s inclusive pragmatism: NPL scholars are interested in the policies, social purposes and political conflicts that shape the law, but also recognize the importance of legal concepts and the inner logic of the legal architecture. This means taking law seriously, but not dogmatically. This is different from other contemporary theoretical accounts that usually commit to a more purist stance. Weinribian corrective justice theory, for example, seems to strictly exclude policy analysis. This view takes the inner logic of the law so seriously that any investigation into function amounts to a misunderstanding of private law. Symmetrically, standard incarnations of Legal Realism adopt an exclusively outcome-oriented mode of analysis, and discount legal concepts as meaningless verbal formulae. The pendulum swings quite violently here, alternating between positions that grant the legal perspective exclusive importance, and those that disregard it completely. NPL is trying to draw on both worlds. Of course, most contemporary legal scholars do the same, as they are not committed to any strict theoretical framework and are quite happy to engage in various modes of analysis. The novelty of NPL is in being systematic, rather than eclectic, in its inclusiveness.

Thus, NPL is systematic, in the sense that it is committed to give reasons for its holistic structure. NPL scholars are interested in ideas that show how the different dimensions of inquiry fit together into a coherent system. Simply saying that all kinds of consideration matter (be they legal, conceptual, economic, moral, political…), is no longer satisfactory, as this type of explanation is too much of an unprincipled compromise (and there is nothing in the middle of the road but dead armadillos). Instead, NPL provides theories that justify the use of different, and seemingly incompatible, normative elements. Henry Smith writes about legal concepts as modules, providing off-the-rack units of information that save the need for full-scale cost-benefit analysis on an individual-case basis. This mode of analysis does a lot to bridge the gap between policy-oriented economic thinking and concept-centered legal analysis. Hanoch Dagan arrives at similar conclusions by envisioning legal practice as a balance between science and craft. This insight creates a type of Legal Realism that is respectful of rules, compromising the need to make fact-based decisions with the unescapable reality of doubt. Benjamin Zipursky’s pragmatic conceptualism provides a jurisprudential framework for this type of scholarly project. Daniel Markovits studies the way legal ordering calls upon individuals’ sense of decency to generate cooperation in times of conflict. This move binds together moral philosophy, professional ethics, inner-legal perspectives and behavioral-economic insights.

This is of course a very partial collection. All these different theoretical endeavors share a common theme, presenting systematic explanations for the inclusive nature of legal argument. This effort is ambitious: anyone who reads Weinrib will tell you normative pluralism and intellectual coherence will not make an easy marriage. This effort also offers a breath of fresh air, as the contemporary legal climate generally tends to be uncompromising, either seeing law as completely disconnected from policy arguments (e.g. constitutional textualism) or as  a mere extension of politics (e.g. CLS). Most importantly, I believe NPL’s systematic holism is the right way forward, for truth lies at the heart of the matter, at the pendulum’s equilibrium point.


Yotam Kaplan is an SJD Candidate and a fellow in the Project on the Foundations of Private Law at Harvard Law School. His writings fall in the intersection of economic analysis and private law theory, focusing on remedies and the law of unjust enrichment. He presented his work at the American, Canadian and Israeli Law and Economics Associations, and at seminars and conferences at Harvard Law School, Yale Law School and Oxford University. For his research at Harvard, Yotam was awarded the Addison Brown Writing Prize, the Dean Scholar Prize and the Harold Perlman Foundation Scholarship. Yotam holds an LL.B. from Hebrew University (summa cum laude) in conjunction with the University’s Interdisciplinary Honors Program. He clerked for Chief Justice Dorit Beinisch of the Israeli Supreme Court, and practiced commercial litigation at Agmon and Co. Law Offices.

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