North American Workshop on Private Law Theory — Eric Claeys

Post by Eric Claeys, George Mason University

Before we get too far into November, some friend of this blog should say a word about the third North American Workshop on Private Law Theory.  (“NAWPLT”). NAWPLT is an annual workshop organized by Henry Smith, John Goldberg, Andrew Gold, Steve Smith and Paul Miller (McGill), and Dennis Klimchuk (Western Ontario).  The NAWPLT organizers usually select eight or nine papers, diversified to cover each of the four major fields of private law: tort, contract, property, and restitution-plus-remedies.  The papers are also diversified to show off a wide range of methodologies—analytical methods, different traditions of normative philosophy, and on occasion conceptually-respectful economic analysis.   I always enjoy going because NAWPLT is refreshing for me.  As an American scholar, most of the private law scholarship I encounter at conferences tends to be reform-oriented or economic in focus.  At NAWPLT, I get reminded that, in some parts of the English-speaking scholarly community, analytical and philosophical methods are taken seriously and applied well to private law.  

NAWPLT III took place two weeks ago at the University of Toronto, October 23-24, and it was up to the workshop’s usual high standards. This year, the “tort” papers were by Greg Keating (University of Southern California), “The Priority of Avoiding Harm,” and Avihay Dorfman (Tel Aviv School of Law, visiting at Harvard Law School), “The Relative Necessity of Tort Law.”  Some philosophical and economic scholarship studies tort by asking what it supplies that couldn’t otherwise be provided by public administrative law regulating risky behavior.  Dorfman and Keating’s papers both make interesting departures from that model.  Keating shows what tort can teach administrative law about administrative law.  Because administrative law relies heavily on cost-benefit analysis, it tends to give individual rights short shrift; tort’s rights- and harm-based structure helps make sense of and defend commitments in health, safety, and environment public law statutes that seem puzzling to cost-benefit-enamored administrative law scholars.   Dorfman argues that the important challenge for tort comes not from public law but from contract and property law; he concludes that tort supplies an account of corrective justice, specifically, a relational view of substantive equality, lacking in the other two major private law fields.

The “contract” papers came from Peggy Radin (Toronto), Robin Kar (Illinois), and Gregory Klass (Georgetown).  Kar’s paper, “Empowerment in Contract,” introduces empowerment as a new norm for interpreting contract law.  Instead of other normative theories, which justify contract law to the extent that it reflects their fundamental goals, empowerment focuses on the way in which binding contracts empower people to meet contracted-for interests.  Radin’s paper, “Access to Justice and Abuses of Contract,” extends the critique of contractual fine print she developed in her book on Boilerplate.  Digital mass-market boilerplate diminishes access to justice, because it makes parties waive the right to redress grievances in courts, and it contributes to normative degradation, because the “agreements” that give such contracts effect are nominal and not meaningful. Klass presented two chapters of a book in progress, “Apt in Certain Words.”  The chapter on which he focused introduces the distinction between “nonjuristic” and “juristic acts” (coming from the German legal concept of Rechtsgeshäft), and argues that this distinction sheds light on important functions of contract—particularly the different strands of contract law creating normative powers and imposing normative duties. 

The two “property” papers both explored the relation between property and a single ingredient in or justification for property.  For Arthur Ripstein (Toronto), that ingredient is sovereignty, in a paper (riffing off of Morris Cohen’s 1928 article “Property and Sovereignty”) titled “Property and Sovereignty: How to Tell the Difference.” In political sovereignty, sovereignty attaches to officials, who enjoy sovereignty only insofar as they exercise it in trust for subjects; the authority conferred in property differs from the authority conferred by political sovereignty because property authority has no corresponding internal norm. Christopher Essert (Queen’s University) explored property’s link to the right to a home in “Property as Homelessness.”  Essert finds property justified by its tendency to supply every member of a political community with a shelter and (more generally) a sphere in which they may settle on and pursue their own legitimate life goals.  Yet property law may be problematic in practice, because it all too often falls short of this goal.

Patricia McMahon (J.S.D. candidate, Yale) contributed the symposium’s remedies paper: “The Fusion Fallacy Revisited.”  The paper was a part of her dissertation on the fusion of law and equity in late nineteenth-century England.  Remedies scholars and legal historians debate whether that fusion was merely procedural or substantive as well; McMahon supplies further evidence that it was merely procedural.  And last but by no means least, Ernest Weinrib (Toronto) covered private law tout court in “The Jurisprudence of Corrective Justice: Structure,” the first chapter of a forthcoming book on corrective justice.   The chapter situates Weinrib’s understanding of corrective justice, in relation to leading theories of law (law and economics, legal process, critical legal studies) and also in relation to leading alternative theories of corrective justice (the remedial and annulment versions).  The chapter also shows how corrective justice simultaneously creates a normative structure for private law and focuses the substantive issues needing specification in private law.          

In addition to the fine papers and rich discussion, participants enjoyed the generous hospitality of the University of Toronto.  Toronto’s law school building combines a classic, English-looking exterior with state-of-the-art facilities inside.  The staff and students were most considerate and attentive to all the details that make an academic conference go well. 

In short, a good time was had by all.  And conferees were pleased to learn that there will be a NAWPLT IV, October 2016, at Fordham Law School, in New York City.