What Commonwealth Jurists Can Learn from the New Private Law — Malcolm Lavoie

Post by guest blogger, Malcolm Lavoie, University of Alberta Faculty of Law

It is impossible to explain the “new private law” to non-American jurists without first describing a little bit of history: the rise of legal realism in the 20th century, with its hostility to formal doctrine, and the subsequent emphasis the American legal academy has placed on looking beyond private law doctrine to understand what is really going on, in economic, political, or other terms. As alluded to by Henry Smith in a recent post, the dominance of “external” approaches to law in private law scholarship has been a uniquely American phenomenon. In civil law jurisdictions, as well as in the Commonwealth, private law scholarship has retained its focus on legal doctrine, though it is sometimes complemented by functionalist approaches of various stripes. If the central aim of the “new private law” is to encourage approaches to scholarship that “take law seriously”, one might rightly ask what it has to offer to jurists from, say, England and the Commonwealth, where scholars never really stopped taking law seriously.

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Private Law is Happening — John Goldberg

Post by: John Goldberg

Kudos to NPL blogger Daniel Markovits for assembling and hosting last week an excellent two-day conference at Yale Law School as the capstone to his Spring ’15 Private Law Seminar. (It is surely a good sign for the field that Harvard and Yale now both have established programs on private law.) 

Here was the line-up of panelists and readings, which encompassed an appropriately diverse yet overlapping set of topics and methodologies, and gave rise to excellent discussions.

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The Bundle of Sticks: Is There Anything It Can’t Do? — Henry E. Smith

Post by Henry E. Smith

Last week, the Supreme Court decided Henderson v. United States.  Justice Kagan’s opinion for a unanimous court holds that a court can use its equitable powers to order the government to transfer a convicted felon’s firearms to a third party as long as the court is satisfied that the recipient will not give the felon control over the guns.  (Under 18 U.S.C. § 922(g), it is unlawful for a felon to possess a firearm.)  As reflected in the 9-0 result and the skepticism of the Justices about the government’s arguments for why a flat-out refusal to allow the felon any choice of transferee, the opinion might be regarded as an unremarkable bit of criminal law or statutory construction.

But then there’s this:

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or another person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike.

Slip Op. at 3-4 (citations omitted).  After gesturing to the bundle of sticks, Justice Kagan goes on to note that the right to sell or otherwise dispose of an item is a distinct incident of ownership and concludes that one can exercise the right to alienate without either actual or constructive possession.

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Naked Came the Assignment — Anthony J. Sebok

Post by Anthony J. Sebok

Here is a simple question: why should it matter who brings a valid claim in private law?  Standing, of course, is an important mechanism that insures that courts spend their time only on cases that matter to someone, especially in public law.  But what if the party who was the victim of a genuine harm chooses to assign that claim to a stranger, in order (let’s assume) to let them bring it to the courts.  Why not let that happen?

It is commonly assumed that almost all legal rights are freely assignable:  contract rights, property rights, and even certain causes in action for damages.  But the law in both the United States and England is grappling with how far to take the principle of fee assignability when it comes to “naked” assignments – that is, the assignment of causes of action for the redress of a wrong, not the collection of a debt or the performance of a contract.

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Arbitration and Opportunism — Aditi Bagchi

Post by Aditi Bagchi

A few weeks ago the Sixth Circuit decided Shy v. Navistar Int’l, Corp., in which a retiree trust fund sued Navistar for allegedly manipulating its corporate structure to avoid payments to the fund required under a consent decree. Navistar paid large sums to the fund for several years, culminating in a $71.6 million payment in 1999. Thereafter the payments abruptly stopped. The fund claims Navistar created a variety of entities to shield its substantial profits from the reach of the consent decree.

At issue in the federal case was not the merits of the fund’s breach of contract claim but its right to pursue the claim in court, given an arbitration provision that covered disputes over the “information or calculation[s]” provided by Navistar. The district court had found that the arbitration term applied but that Navistar had waived its right to insist on arbitration as a result of its conduct in litigation. The appellate court agreed that the arbitration term applied but reversed the finding of waiver. A dissenting judge argued that the arbitration term did not apply, but that even if it did, Navistar waived arbitration by failing to raise it until its prospects in litigation began to fade.

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A Hohfeldian Take on the Public-Private Law Divide — Ted Sichelman

Post by Ted Sichelman

One aim of New Private Law is to reinvigorate the notion of “private law” in the face of realist and critical legal studies (CLS) critiques of the proverbial “public-private” law distinction.

These critiques center on three claims. First, the State often regulates in areas thought to be within the realm of private law, such as real property and contracts. Second, the State is necessary to enforce private economic relationships, such as those governing real property and contracts. Third, the State is a vague and ambiguous concept, and it is often difficult to characterize what does and doesn’t fall within its scope. In this regard, some contend that many private actors wield “power” in ways similar to those of the State.

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How Many Patents? — Janet Freilich

Post by Janet Freilich

I often get asked how many U.S. patents exist and are in force. People’s instinct on this varies wildly. So, to celebrate the achievement of a milestone patent number, I wanted to write about the nine millionth U.S. patent, which issued on April 7th, 2015. Dennis Crouch from Patently-O estimates that three million U.S. patents are currently in force, which seems about right to me.

U.S. Patent No. 9,000,000 is titled “Windshield Washer Conditioner” and claims “a system and method of collecting and conditioning rainwater and other moisture, such as dew, from a windshield of a vehicle and utilizing the collected fluid to replenish the fluids in the windshield washer reservoir.” The familiarity and ordinariness of the technology’s application exemplifies the message in John Golden’s recent article that, although we perceive patents as predominantly high-tech,

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Law and the Big Oops — Henry E. Smith

Post by Henry Smith

vossMost of the time when we think building encroachments, we’re talking about an inch here or there. But what happens when someone builds an expensive house on the wrong lot? That could never happen, could it?

Oh yes, it can and it does. In one recent example, Mark and Brenda Voss mistakenly had their vacation home (pictured above) built at a construction value of $680,000 on the lot next to the one they actually own. Mr. Voss owns a real estate company (!), but the mistake and the ultimately responsibility appear to be the builder’s. Bargaining is inevitably going to be tough in what amounts to the ultimate bilateral monopoly situation. (Merrill and I have a case in our casebook in which the frustrated mistaken improver demolishes the house – and winds up having to pay for it!)

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Tort Law ABCs … — John Goldberg

Post by John Goldberg

In part what it means to take private law seriously is to be mindful of the proper application of basic legal concepts. In that spirit, I will from time to time point out instances of what I take to be sloppy legal analysis. Apologies to those who end up as blog fodder. Lord knows everyone makes mistakes.

Today’s example comes from a plain-vanilla, slip-and-fall case, Bongiorno v. Americorp, Inc., 159 So.3d 1027 (Fla. Ct. App. 2015). The plaintiff slipped while in a restroom in the office building in which she worked. She sued the owner on a premises liability claim.

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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).

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Langdell on the Structure of Intellectual Property — Shyam Balganesh

Post by Shyam Balganesh

Christopher Columbus Langdell is best known as a Legal Formalist who sought to develop an autonomous and deductive approach to legal analysis. Some of his most prominent contributions were in trying to identify the structure of rights and wrongs. Hidden within his body of work is a short five-page paper entitled Patent Rights and Copy Rights (12 Harv. L. Rev. 553 (1899)) where he tries to understand the precise analytical structure of statutory patents and copyrights. Langdell makes a number of interesting points in the paper, but what I found most compelling was his effort to locate the patent and copyright systems (i.e., statutes) within the realm of private law, despite the obvious role of the state in generating and maintaining the system. Here are a few of his observations (p. 554):

Has an author, musical composer, artist, or inventor a property in his literary, musical, or artistic creation, or in his invention, regarded as an incorporeal thing? If he have, this will furnish him with another and effective means of preventing the use and enjoyment of his creation or invention by others without his consent. If such a property exist, it is not created by the State, but is deduced as a consequence of the creation or invention. If such a property does not exist otherwise, doubtless it might be created by the State; but it is believed that no State ever has created such a property.

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Fuller & Perdue: The Gap Between Motive and Measure — Greg Klass

Post by Greg Klass

Lon Fuller and William Perdue’s The Reliance Interest in Contract Damages: 1, 46 Yale L.J. 52 (1936), is best known for its analytic claim that there are three basic measures of contract damages: restitution, reliance and expectation. Also familiar are the article’s normative and descriptive theses: that that the reason for judicial intervention decreases as one moves from restitution to reliance and then from reliance to pure expectation, and that in many cases courts calculate damages with an eye to compensating reliance rather than fulfilling the promisee’s expectation. Often overlooked is the article’s methodological claim, which Fuller and Perdue label “the divergence of measure and motive” (66). “Measure” here stands for the remedial measure that attaches to the violation of a legal duty and “motive” designates the duty’s purpose or raison d’être. The divergence of measure and motive claims that the tie between rights and remedies is looser than is commonly thought. It follows that remedies are the wrong place to start when constructing an interpretive theory of legal duties.

Fuller and Perdue offer two arguments. First, practical considerations such as difficulties in proof or measurement often recommend an alternative remedy. “[E]ven where it is reasonable to suppose that a single interest furnishes the exclusive raison d’être of legal intervention it is still possible for reasons of convenience and certainty the court may choose a measure of recovery which differs from that suggested by the interested protected” (66-67). An example can be found in Fuller and Perdue’s explanation of the expectation measure as designed to protect the nonbreaching party’s reliance interest. The expectation measure captures opportunity costs, which are often difficult to prove. And the expectation measure facilitates reliance by dispensing with its proof. More generally, administrative costs, problems of proof, the possibility of error and other practical pressures can all push remedies in directions that might not correspond to the best explanations of the associated duties.

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Waiver of Class Actions — Keith Hylton

Post by Keith Hylton

Waiving or agreeing pre-dispute to arbitrate a potential legal claim has always been a controversial topic in tort law. It’s especially controversial in the class action setting, since the Supreme Court’s decision in AT& T v. Concepcion, 563 U.S. 321 (2011) (holding that the Federal Arbitration Act preempted California’s application of unconscionability doctrine as a bar to the enforcement of an agreement prohibiting class-wide arbitration). In a piece forthcoming in the Supreme Court Economic Review I examine the question whether class action waivers should be enforced. Here is the SSRN version.

To answer this question, it is helpful to start by asking whether society’s welfare can ever be enhanced by allowing pre-dispute litigation waivers. The answer is yes. Society benefits from the threat of litigation, because the threat induces potential tortfeasors to take care. But that benefit is not ever-increasing. In particular, there is a cost associated with it, the cost of litigation. If the value of the “deterrence benefit” is less than the cost of litigation, then the threat of litigation actually reduces society’s welfare (after netting out the litigation cost). A litigation waiver may be socially desirable in this case.

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Private Law – A Response to Bainbridge — John Goldberg & Henry E. Smith

Post by John Goldberg and Henry Smith. Steve Bainbridge’s reaction—“WTF is ‘private law’?”—is understandable. It shows why the “New Private Law” is new! Along with Matt Bodie, he asks why areas like corporate law are not part of private law. The short answer is that they are, up to a point. Corporate law, family law, … Read more

Fodder for Private Law Mavens: The Federal Circuit, Laches, and Exhaustion — John Golden

Post by John Golden

Private law mavens might have interest in two patent cases that the U.S. Court of Appeals for the Federal Circuit has taken en banc. In SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, No. 2013-1564 (Fed. Cir. Dec. 30, 2014) (en banc), the Federal Circuit will review precedent indicating that the defense of laches is available “to bar a claim for damages based on patent infringement occurring within [a] six-year damages limitation period” set by the U.S. Patent Act. In Lexmark International, Inc. v. Impression Products, Inc., Nos. 2014-1617, 2014-1619 (Fed. Cir. Apr. 14, 2015) (en banc), the Federal Circuit will review additional precedent involving the doctrine of patent exhaustion, a doctrine under which, in the Supreme Court’s words, “the initial authorized sale of a patented item terminates all patent rights to that item.” Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617, 625 (2008).

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Post by John Goldberg and Henry Smith. Welcome to the New Private Law Blog! Our aim is to start a new and wide-ranging discussion of time-honored issues concerning the rights and duties of individuals and private entities as they relate to one another. Future blog posts will address topics in contracts, torts, property, intellectual property, … Read more

Most Cited Private Law Articles Published in the Last 25 Years

Post by Ted Sichelman

Recently, I began a project to trace the influence of legal scholars from the late 19th century through the present using citation networks. Building off of this work, I’ve assembled a list of the most cited private law articles published over the last twenty-five years (see  below).

In determining whether an article fell into the “private law” category, I first performed a search in HeinOnline to retrieve all law journal articles published since 1990, ordered by citation count. Then, I reviewed the title and often the content of every highly cited article (more than 200 citations). I included in the most-cited list any article in the areas of torts, property, contracts, intellectual property, commercial law, wills & trusts, and remedies, as well as any article heavily drawing upon methods from those fields. (No other areas of private law had enough citations to justify inclusion.) I excluded articles in public law or hybrid fields, such as corporate law (unless the article focused on contract or commercial law), employment law, family law, securities law, cyberlaw, antitrust, and privacy. Of course, this process required some judgment, but no more than a few of the articles were close calls in my view (avoiding the thorny question of whether intellectual property is a hybrid field).

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