CFP: Workshop on Private Law & Emerging Technology

We are excited to invite legal scholars to participate in a virtual Workshop on Private Law and Emerging Technology cosponsored by Harvard’s Project on the Foundations of Private Law, Yale’s Information Society Project, and Yale’s Center for Private Law. This Workshop will be a forum for in-depth engagement with works-in-progress at the intersection of private law, technology policy, … Read more

Obligations X ~ July 14–17, 2020 ~ Harvard Law School

We are pleased to announce the website launch for the Tenth Biennial Conference on the Law of Obligations: The conference is co-hosted by Harvard Law School and Melbourne Law School, and is being co-convened by John Goldberg, Andrew Robertson and Henry Smith.  The conference theme, Private Law Inside and Out, is intended to provoke … Read more

Canada’s Second Biennial Obligations Conference

By Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School On May 10 and 11, the University of New Brunswick Faculty of Law hosted the second biennial Canadian Law of Obligations (CLO) conference. Legal scholars from across Canada, as well as the United States and England, presented their works-in-progress on the theme of Obligations … Read more

Oxford Studies in Private Law Theory (Miller & Oberdiek eds.) — Call for Papers

Oxford University Press is pleased to announce the launch of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers), and to issue a call for papers for the first volume.  Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law … Read more

The Administrative-Private Law Interface in IP: Conference Summary and Video

Post by Patrick Goold Intellectual property law is, in many ways, part of American private law. IP rights are commonly viewed as a type of property right (see e.g. here and here), and courts have historically been the dominant institution for enforcement of those rights. However, today IP law-making and adjudication is increasingly performed by … Read more

University of Amsterdam Summer School on ‘Private Law & Vulnerability’

Post by Patrick Goold The Centre for the Study of European Contract Law (CSECL), of the University of Amsterdam is organizing a Summer School on ‘Private Law & Vulnerability’, to be held 2-5 July 2018 in Amsterdam. The 2018 CSECL International Summer School will provide a cross-disciplinary exploration of the relationships between vulnerability and private … Read more

Conference Announcement: The Administrative-Private Law Interface in IP Law, Harvard Law School, March 29

The Project on the Foundations of Private Law at Harvard Law School, and the University of Texas School of Law invite you to attend The Administrative-Private Law Interface in IP, a day-long conference held at Harvard Law School on March 29. Intellectual property law is historically part of American private law. IP rights are generally … Read more

Yale Law School, Private Funds Conference — Sadie Blanchard

Post by Sadie Blanchard The Yale Law School Center for Private Law will host the Private Funds Conference: Private Equity, Hedge Funds, and Venture Capital on November 17, 2017. The conference will bring leading theorists from law, economics, finance, and sociology into dialogue with people with experience at the highest levels of experience with private funds, … Read more

Private Equity Conference Announcement – Yale Law School

Save the Date The Yale Law School Center for Private Law will host a Private Equity Conference on November 17, 2017. The conference will bring leading theorists from law, economics, finance, and sociology into dialogue with people with experience at the highest levels of private equity, including from law practice, financial firms, and institutional investors.  Oliver … Read more

Reflections on Obligations in Canada

Post by Samuel Beswick

On May 5–6, the Peter A. Allard School of Law (University of British Columbia) hosted the inaugural Canadian Law of Obligations conference with the theme of Innovations, Innovators, and the Next 20 Years. The conference was held in honor of Professor Joost Blom QC to mark his retirement from a 45-year career at UBC’s Law School.

Justice Russell Brown of the Supreme Court of Canada, a UBC alumnus and unabashed “tortaholic,” opened the conference with praise of Canada’s legal heritage and the methodological constraints of stare decisis, analogical reasoning, and reasons-based persuasion that are both empowering and humbling features of common law adjudication.

The conference drew scholars from across North America as well as from England and Wales, Hong Kong, Israel, and South Africa. Across the nine panels and four keynote addresses, presentation topics traversed problems concerning public authority liability, the evolving torts of privacy and defamation, remedies for historic wrongs and abolition of historic rights, private law theory, empirical research and causation theory, trusts, and the implications of the good faith principle in contract law (the “tortification of contract,” as Professor Blom put it).

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Internal and External Accounts of IP Law: Notes from IP, Private Law, and the Supreme Court Conference Continued

Post by Henry Smith

As a follow up to Patrick Goold’s post on the IP, Private Law, and the Supreme Court Conference, let me raise a couple of questions inspired by the first panel. Much of the discussion focused on how treating intellectual property as a kind of property does not mean assuming it is absolute or that all of IP is equally “property-like.” And yet what does it mean to think about a topic in terms of property?

In private law, a distinction is often drawn between two broad families of approaches. On the one hand are external, often functional, theories that explain and justify private law in terms of something else, whether economics, psychology, or philosophy. On the other side and less common in American law schools are internal or interpretivist theories that adopt the perspective of one inside the legal system and seek to make sense of that system from within – to render it coherent.

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Notes from the IP, Private Law, and Supreme Court Conference

Post by Patrick Goold

On March 10, the Project on the Foundations of Private Law at Harvard Law School and the Intellectual Property Program at the George Washington University Law School hosted the Intellectual Property, Private Law, and the Supreme Court conference. This day-long conference brought scholars, practitioners, and policy makers together to discuss the Supreme Court’s use of private law concepts in IP cases. The conference was a time to reflect on how the court has used principles from property, torts, contracts, equity and remedies, in IP law, and to think about how the court should use these principles in the future. This short blog post reports some of the day’s major themes.

Opening remarks were delivered by Commissioner F. Scott Kieff (International Trade Commission, on leave from his faculty position at George Washington Law).  Drawing from the examples of three prior cases (MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2015); Limelight Networks, Inc. v. Akamai Technologies, 134 S.Ct. 2111 (2015); and ClearCorrect Operating, LLC, v International Trade Commission, 819 F.3d 1334 (2016)), he explored some benefits and risks presented when individual litigants focus their arguments on private law concepts, and how this differs from the “too much versus too little protection” debate that commonly dominates IP law discussions.

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Intellectual Property, Private Law, and the Supreme Court — Conference Announcement

Post by Patrick Goold The Project on the Foundations of Private Law at Harvard Law School and the Intellectual Property Law Program at The George Washington University Law School invite you to attend Intellectual Property, Private Law, and the Supreme Court, a day-long conference in Washington, DC, on March 10. In the last decade, the … Read more

Patent Exhaustion and Private Law Goes to the Supreme Court — Patrick Goold

Post by Patrick Goold

Sir Edward Coke’s Institutes of the Lawes of England, first published in 1628, rarely influences the direction of modern U.S. patent law. But that might be about to change. This December, the Supreme Court of the United States granted certiorari in the case of Impression Products, Inc. v. Lexmark International, Inc., Supreme Court Docket No. 15-1189, concerning the scope of the patent exhaustion doctrine. The case will interest readers of this blog because it highlights the conceptual and doctrinal relationship between IP exhaustion and common law rules regarding restraints on alienation.

The case involves the ongoing battle over refurbished printer toner cartridges. Lexmark International makes printer toner cartridges, over which it owns a number of patents. These cartridges fall into two types: “Regular Cartridges” are sold at full price; while “Return Program Cartridges” are sold at a discount but come with a “single-use/no-resale” restriction, meaning the buyer may neither reuse nor resell the cartridge after the toner has run out. Lexmark sells these cartridges both domestically in the U.S. and abroad. In 2014, Lexmark sued Impression Products for patent infringement. Impression Products had previously: (1) bought domestically-sold Return Program Cartridges, modified by third parties to allow refilling, and resold them in the U.S.; and (2) imported and resold both Regular and Return Program Cartridges from foreign markets. Lexmark maintained both of these actions infringed their U.S. patent rights under § 271 of the Patent Act. Impression argued that both of these acts were non-infringing due to the Patent Exhaustion doctrine, which holds that “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). John Golden has discussed the case in a prior New Private Law Blog post.

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North American Workshop on Private Law Theory IV

Post by Patrick Goold

Earlier this month, Fordham University School of Law hosted the fourth annual North American Workshop on Private Law Theory (NAWPLT). This edition of NAWPLT—a yearly conference that gathers U.S and Canadian private law scholars to discuss works-in-progress selected by a steering committee—was organized by Fordham Professors Aditi Bagchi and Ben Zipursky.

In twentieth century legal theory, few issues have received more attention than the question: “What is Property?” Eric Claeys, in Property as an Institutional Artifact, defends a revisionist view. To Claeys, property is not merely a form (a bundle of jural relations), but has an essential substantive content: exclusive use. A property right, on this view, confers on one individual the exclusive authority to benefit from or manage a resource. In a related vein, James Stern’s paper, titled Intellectual Property and the Myth of Nonrivalry, argued against the prevailing view that intangible goods are “nonrivalrous.” Insofar as people have incompatible desires about how intangible goods are to be used, they resemble tangible goods, and hence there can be a need for a legal architecture that delegates to one individual the exclusive right to decide how such goods are used.  

In Legal Positivism as an Idea About What Morality Might Be, Martin Stone considered through the lens of tort law another ‘eternal’ question: the relation of law and morality. Taking issue with the view that the distinctiveness of legal positivism resides in its account of the nature of law, Stone maintains that it instead resides in a particular instrumental understanding of the relation of morality to law. In Retaliatory RICO and the Puzzle of Fraudulent Claiming, meanwhile, Nora Engstrom discussed a new technique repeat-player defendants are using to fight fraudulent claims: the Racketeer Influenced and Corrupt Organizations Act (RICO). When it was signed into law in 1970, Congress probably did not envision that RICO’s provisions on bribery, fraud, and obstruction of justice would allow corporate defendants to retaliate against plaintiffs bringing baseless claims to court. Questions remain regarding whether such retaliatory RICO actions can be exercised in a sensible and even-handed manner.

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Communal Property and Two Legal Cultures — Henry Smith

Post by Henry Smith

Last week I took part in some events at the Intensive Doctoral Week at Sciences Po in Paris.  This is a conference for Ph.D. students in law from all over France, organized by Mikhail Xifaras of Sciences Po Law School, and it features panels devoted to a wide range of topics.  One of two on property focused on the future of communal property, with panelists Bob Ellickson, Séverine  Dusollier, Maria Rosaria Marella, and myself (with my name spelled “Henri” no less!).  The notion of common property has a long pedigree and is very important in the work of legal scholars such as Bob Ellickson and Carol Rose and economists such as Gary Libecap and Elinor Ostrom.  The Europeans have a renewed interest in communal property for two reasons. First, they believe that it is a way of breaking down the supposedly hyper-individualist notion of property enshrined in the civil code.  Second, communal property can be used to solve cutting-edge problems like providing new forms of low-income housing. 

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SIOE 2016 — Dan Kelly

Post by Dan Kelly


The Society for Institutional and Organizational Economics (SIOE) (formerly, the International Society for New Institutional Economics (ISNIE)) is hosting its 20th Annual Conference this week, June 15-17, at Sciences Po in Paris, France.  The conference website includes details on this year’s program and links to abstracts and papers.

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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.  

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Conference Announcement — Contract, Status, and Fiduciary Law (McGill, 11/6-7)

The McGill University Faculty of Law is pleased to announce the forthcoming conference – Contract, Status, and Fiduciary Law – to be held at McGill on 6-7 November 2015. The conference will feature papers by leading legal theorists exploring philosophical questions concerning relationships between contract law, moral and legal conceptions of status, and fiduciary law. … Read more

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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Conference Announcement: Private Law in the 21st Century, Brisbane Australia

Readers of the blog working on a variety of private law issues might find interest in the following conference, to be held at Brisbane, Australia on December, 14-15th, 2015:

The Australian Centre for Private Law and the TC Beirne School of Law at The University of Queensland, is proud to host the conference Private Law in the 21st Century to be held in Brisbane on 14-15 December 2015.

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SIOE (ISNIE) 2015: Institutions, Organizations, Economics — Yonathan Arbel

Post by: Yonathan Arbel

As Dan Kelly noted in his last post, this weekend the SIOE (previously known as ISNIE) conference was held at Harvard Law School. The conference was, in my slightly biased judgment (I was assisting the president-elect Henry Smith and Janet Freilich with its organization), very successful, with about 200 paper presentations and about 250 participants. It was also very international, with participants hailing from 29 countries worldwide. The program can be found here; as the program shows, there is a great richness in the topics, methodologies, and institutional affiliations of speakers. This is a by-product of the ambitious goal the society set out for itself of studying the “nature, behavior, and governance of organizations and institutions.”

Henry Smith presents Harold Demsetz with the Elinor Ostrom Lifetime Achievement Award


Let me note a few highlights and themes:

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ISNIE 2015 — Dan Kelly

Post by Dan Kelly

The International Society for New Institutional Economics (ISNIE), soon to be renamed The Society for Institutional and Organizational Economics (SIOE), is hosting its 19th Annual Conference this weekend, June 18-20, at Harvard Law School.  The conference website includes details on this year’s program and papers.

The conference is sponsored by Harvard Law School through the Project on the Foundations of Private Law.  In addition to keynotes by Martin Nowak (Harvard) on “The Evolution of Cooperation” and Michael Whinston (MIT) on “Property Rights and the Efficiency of Bargaining,” the program includes a number of panels that intersect with private law topics, including agency and fiduciary law, contracts, intellectual property, and property rights.     

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