Apply to be a Qualcomm Fellow in Private Law and Intellectual Property!

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property.  The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and … Read more

Apply to be a Private Law Fellow!

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for a Postdoctoral Fellowship in Private Law.  The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law.  For more information and application procedures, … Read more

When is a Covenant just a Covenant? Of Meso, Newman and Transactions with Patents – Jorge Contreras

Post by guest blogger Jorge Contreras, University of Utah College of Law.

A petition for certiorari was recently filed with the Supreme Court in Meso Scale Diagnostics LLC v. Roche Diagnostics GmbH (Del. 2015). In it, Petitioner poses the following question: “Whether a covenant, promise, or agreement not to sue for the infringement of a federal patent is a license of that patent as a matter of federal law.”

Though phrased simply, the question is an important one for reasons that extend well beyond the immediate dispute between the parties (which itself is too complex to describe here). Among other things, its answer has serious implications for the doctrine of patent exhaustion and the treatment of industry-wide commitments to limit the enforceability of patents in contexts such as standard-setting (commitments I have elsewhere termed “patent pledges”).

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More Common Law in the Interpretation of Statutes: Akamai v. Limelight Part II – John Golden

Post by John Golden

In June, I posted on a court opinion in Akamai Technologies, Inc. v. Limelight Networks, Inc. In this opinion, a panel of the U.S. Court of Appeals for the Federal Circuit invoked common law limits on joint tortfeasor liability to justify a narrow view of “divided infringement” as a form of direct infringement under § 271(a) of the U.S. Patent Act. Generally speaking, potential “divided infringement” situations are ones in which two or more actors split between themselves the performance of acts that, if performed by one, would constitute direct infringement. Realities of our networked world have intensified concerns with how to handle such situations—particularly for computer technologies for which it is relatively easy to distribute performance of process steps across different entities and locations.

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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.

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Private Law Adjudication as an Arena of Struggle Between Principle and Policy – Noam Gur

Post by Noam Gur

Ronald Dworkin famously argued that “[j]udicial decisions in civil cases, even in hard cases …, characteristically are and should be generated by principle not policy” (Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977), p. 84. See also Ronald Dworkin, Law’s Empire (Harvard University Press, 1986), p. 244). Given the significant place policy considerations seem to occupy in civil law adjudication one might be tempted simply to dismiss Dworkin’s argument as too far removed from actual and desirable judicial decision-making. I believe, however, that there is something to be learned by critically engaging with his argument, which is what I will do (or begin to do) in this comment. The purview of my comment will be private law, and my examples will be drawn from tort law, the private law area I am most closely familiar with. I will suggest that while the principle/policy distinction does not mark a rigid boundary circumscribing what courts should do (or characteristically do), it plays a different and important role in shaping judicial decision-making.

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Can Tort Damages Discriminate? – Anthony Sebok

Post by Anthony Sebok

On July 30, 2015, federal district court Judge Jack Weinstein refused to allow a jury to take the race of a plaintiff into account when calculating future earnings loss.  The case, G.M.M. v. Kimpson (discussed here:, was a lead paint poisoning case and the plaintiff was a four year-old boy.  The defense put on the stand a forensic economist intended to base his testimony, on part, statistical assumptions about the academic achievement and earnings potential of Hispanics, as a group.  Judge Weinstein flatly refused to allow any testimony based on ethnic group characteristics.

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Private Law in the Digital Age – Dan Kelly

Post by Dan Kelly

Private law aficionados enjoy teaching, and discussing, many of the classic common law cases, Hawkins v. McGee (in contracts), Pierson v. Post (in property), and Vosburg v. Putney (in torts).  But, of course, private law is still relevant for, and able to provide insights into, new legal issues emerging in the twenty-first century.  One of these issues is fiduciary access to digital assets.

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Can We Contract For Fiduciary Loyalty? – Andrew Gold

Post by Andrew Gold

Some of the more interesting puzzles in private law involve the boundaries between subfields.  Here is a recent example that implicates contract law and fiduciary law.  In 2013, the Delaware Supreme Court expressly recognized a contractually created fiduciary duty of good faith.  See Gerber v. Enterprise Products Holdings, LLC, 67 A.3d 400, 418 (Del. 2013).  From different perspectives, several theorists have recently argued that there are qualitative differences between contractual and fiduciary duties.  See Daniel Markovits, Sharing Ex Ante and Sharing Ex Post: The Non-Contractual Basis of Fiduciary Relations, in Philosophical Foundations of Fiduciary Law 209 (Gold & Miller, eds.) (2014); Stephen R. Galoob & Ethan J. Leib, Intentions, Compliance, and Fiduciary Obligations, 20 Legal Theory 106 (2014).  See also D. Gordon Smith, Contractually Adopted Fiduciary Duty, 2014 U. Ill. L. Rev. 1783, 1792 (arguing that a duty arising from the language of a contract should be considered a contractual duty).  Which view is right?

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The Hidden Equitable Langdell – Henry Smith

langdellPost by Henry Smith

As Shyam mentioned in his post of May 8th, Christopher Columbus Langdell is widely taken to be the archformalist of the nineteenth century and Exhibit A of a deplorable “Classical Legal Thought” with its would-be deductive “science” of law. Recently, commentators such as Tony Sebok and Brian Tamanaha have argued that the formalist era was not as formalist is it appeared. Mostly the controversies over this revisionism swirl around realist-sounding pronouncements of courts and commentators of the common law in the late nineteenth and early twentieth centuries.

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Tort and the Taking or Assigning of Responsibility – John Golden

Post by John Golden

Readers of this blog might be interested in a Jotwell post by Scott Hershovitz of the University of Michigan and the associated draft paper by David Enoch of Hebrew University, Tort Liability and Taking Responsibility. (Thanks to my colleague Susan Morse for pointing this out!) The paper by Enoch explores the question of what benefit a tort system focused on negligence might provide that is absent from an idealized version of New Zealand’s no-fault system of compensation through the Accident Compensation Corporation. As described on page 4 of Enoch’s paper, “[w]e are to imagine the best (realistic) version of the New Zealand” system:

Accidents happen … at roughly the rates they happen elsewhere. People are harmed and compensated. But they are not compensated by “their” harmers. Rather, all risk-creators contribute to a general pool …, and those harmed are then compensated from this general pool.

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The Supreme Court’s New Equity: We’re Not in Kansas Anymore – Henry Smith

Post by Henry Smith



This is a private law blog, but that doesn’t make the U.S. Supreme Court irrelevant. This past term, in Kansas v. Nebraska, 135 S. Ct. 1042 (2015), the Court afforded equitable relief to both sides in a dispute over water taken by Nebraska from the Republican River Basin under an interstate compact involving those two states and Colorado, along with and a previous settlement. The case has it all: water, interstate relations, federal supremacy, original jurisdiction, contract law – and equity. Although there is a lot to say about this case, it is this last aspect – the role of equity – that I think is underappreciated or mis-appreciated.

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Private Law Consortium, Day 1

Post by Janet Freilich


On July 6-7, McGill University’s Faculty of Law and Center for Intellectual Property Policy hosted the Third Annual Private Law Consortium, organized by David Lametti. Participants at the Consortium came from Bar-Ilan University, Harvard University, McGill University, the University of Oslo, the University of Pennsylvania, and the University of Trento. The Consortium spanned a wide variety of private law topics, including property, torts, contracts, and intellectual property.

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How Do Conceptual Analysis and Normative Evaluation Relate to Each Other in Private Law? – Eric Claeys

Post by Eric Claeys

Over the last month, Patrick Goold and Andrew Gold have both posted fine remarks about the role of analytic and conceptual philosophy in private law. Patrick suggested that the new private law project relies considerably on analytical methods associated with English analytical philosophy, and he anticipated several objections commonly made against analytical methods. Andrew provides helpful examples of recent scholarship applying analytical and/or conceptual methods to study private law.

I am not a producer of analytic methods, but I do consider myself a consumer of them. I am primarily interested in natural law- and rights-based normative theories of property, but I have written some on the analytical meaning of “property,” and the conceptual interplay between “property,” “infringement” and remedies in IP. In this entry, I’d like to warn other potential consumers of analytical method away from a few confusions I’ve encountered in trying to educate myself about analytical methods.

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Are There Too Many Patents to Search? A Response — Janet Freilich

Post by Janet Freilich

Ted Sichelman has written a response to my earlier post on whether there are too many patents to search. He argues that the problem of patent searching is smaller than I suggested. He includes an excellent critique of Christina Mulligan and Timothy Lee’s article on patent search costs and provides some much needed numbers on the magnitude of search time and costs. I agree with him on many points, but I stand by my conclusion that clearance searches are very difficult, if not impossible.

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Are There Too Many Patents to Search? A Response — Ted Sichelman

Post by Ted Sichelman

Updated July 3, 2015

In a recent post on this blog, Janet Freilich asserts that “it is exceedingly difficult (if not impossible) to know if one is infringing a patent.” Freilich further contends that “larger numbers of patents exacerbate this problem,” and approvingly quotes Christina Mulligan and Timothy Lee’s claim that “In software, for example, patent clearance by all firms would require many times more hours of legal research than all patent lawyers in the United States can bill in a year.”

These views generally reflect the academic zeitgeist regarding “search costs” in patent law. However, they do not accord with my own experience. In this regard, I have conducted many hours of patent searches—first, when I founded and ran a venture-backed software company for five years, for which I regularly reviewed patents of competitors; and second, as a practicing attorney, which included reading thousands of patents in many different fields (from software to electronics to medical devices) for “freedom to operate” and prior art purposes.

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