Private law theory

Specific Performance in Action – Yonathan Arbel

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Post by Yonathan Arbel

Greg Klass’ recent post (as well as recent essay) raised the issue of efficient breach. Deeply embedded in the debate on efficient breach is the choice of remedies between specific performance and expectation damages. If courts award money damages, then this—in the view of opponents of the efficient breach theory—enables promisors to “buy” their way out of promises. Instead, the argument goes, awarding specific performance would give promisees “what they were promised”.  Contrary to their approach, specific performance is reserved under U.S. law only to (arguably) exceptional circumstances involving unique goods and land.

In my work, I try to show that enforcement matters. Parties do not negotiate or behave in the shadow of the law, I argue, but in the shadow of the sheriff. And conventional theory has tended to downplay and sometimes completely overlook the role of enforcement. Thinking through the lens of enforcement on private law provides new insight on old questions and the question of choice of remedies is no exception.

Looking from this perspective, I conducted a qualitative empirical analysis looking into the motivations of people suing for specific performance and the real-life outcomes of these lawsuits: are judgments implemented? Do people negotiate around them? To what extent do the motivations of litigants differ from their lawyers?

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Yale Law School’s Seminar in Private Law: Disputing Ends and Means in the Field of Human Rights

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Post by Sadie Blanchard, Research Fellow Yale Law School

Last week in Yale Law School’s Seminar in Private Law, Iain Levine, Deputy Executive Director at Human Rights Watch, and Sam Moyn, Professor at Harvard Law School, began a discussion of practical and theoretical perspectives on the legitimation of human rights. A preliminary point might help to orient readers, who would not be alone if they wondered what human rights have to do with private law or with the Seminar’s theme of how dispute resolution processes that exist outside of established legal or political structures can generate authority. Most nations, after all, have agreed to several multilateral human rights treaties negotiated within the United Nations. Human rights are monitored and enforced by international tribunals and other bodies created and controlled by states through the United Nations and other political assemblies of states. The international human rights regime seems to be precisely a political and legal structure designed and built by states.

Nonetheless, relevant questions remain. For example, how did this state of affairs come to be? The history of the global ascent of human rights is short. What is the content of human rights, and how should they be protected? What do they imply for sovereignty and public authority? Those issues remain contested not only within the state-centric human rights architecture but also outside of it. Such questions make human rights an appropriate object of study by those who wish to better understand conflict resolution outside of established structures.

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Hanoch Dagan on “an Autonomy-Based Private Law” — John Golden

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Post by John Golden

In a paper posted on SSRN, The Challenges of Private Law: Towards a Research Agenda for an Autonomy-Based Private Law, Hanoch Dagan lays out a vision of private law as a “law of our interpersonal (horizontal) relationships” that strives to “establis[h] ideal frameworks for respectful interaction between self-determining individuals.”  Dagan thereby seeks to escape the “deadlock” between views of private law as (1) “a garden-variety mode of regulation” and (2) a branch of law whose focus on “individual independence” makes it “resistant to demanding interpersonal claims.”  Dagan argues that, in a world “of interdependence and of personal difference,” “tak[ing] seriously law’s commitment to autonomy as self-authorship or self-determination” requires subjecting private law to a “prescription of structural pluralism and [an] injunction of relational justice.”  In accordance with the prescription of pluralism, private law should provide individuals with “meaningful choices.”  Indeed, private law theory should “celebrate [a] multiplicity of contract types and property institutions rather than suppress … or marginalize them.”  In accordance with concerns of relational justice, private law needs provisions for “interpersonal accommodation” to help ensure that individuals “respect each other’s right to self-determination and thus to substantive equality.”

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Yale Law School’s Seminar in Private Law: Dispute Resolution Beyond the State — Sadie Blanchard

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Post by Sadie Blanchard, Research Fellow Yale Law School

Over the coming term, the Seminar in Private Law at Yale Law School will explore dispute resolution outside the state. Disputes are often resolved through processes that fall outside any previously authorized political structure. Because such processes cannot rely on the state for legitimacy, they owe whatever authority they achieve to their own natures. To better understand this category of dispute resolution mechanisms, the Seminar will bring together scholars in law, the social sciences, and the human sciences and people who practice law, politics, medical research, human rights advocacy, university administration, and commerce to discuss their ideas and experiences concerning such free-standing efforts to resolve disputes.

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First Do No Harm: The DIRECTV v. Imburgia Decision — Greg Klass

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Post by Greg Klass

Yesterday the Supreme Court released its decision in DIRECTV v. Imburgia. DIRECTV won. If Amy Imburgia wants to sue DIRECTV under its 2007 contract, she will have to go to bilateral arbitration. Once again: no class action. I think this is the wrong outcome in this case, for reasons I articulated here, here and here, and for many of the reasons Justice Ginsburg gave in her dissent. That said, Breyer wrote a majority opinion that should make critics of the Court’s recent arbitration decisions happy.

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Interpretation and construction 3: Arthur Linton Corbin — Greg Klass

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Post by Greg Klass

In this third post on the interpretation-construction distinction, I introduce the hero of my story: Arthur Linton Corbin. Corbin builds on Francis Lieber’s and Samuel Williston’s work (which I have discussed here and here) to articulate more perspicacious conceptions of interpretation and construction. Whereas both Williston and Lieber viewed construction as supplementing interpretation, Corbin sees the two activities as complementary. He gets there by collapsing Williston’s three categories of rules into two.

Corbin’s 1951 treatise on contract law provides, as far as I know, the first clear articulation of the complementary conception. Corbin describes interpretation and construction as interlocking activities, both necessary to determine what the law requires. It is worth quoting the relevant passage in full:

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Interpretation and Construction 2: Samuel Williston — Greg Klass

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Post by Greg Klass

In my last post on the interpretation-construction distinction I described Francis Lieber’s supplemental view of construction, which can be found in his 1839 book, Legal and Political Hermeneutics. Lieber’s view is characterized by two claims. First, construction is supplemental: it steps in only when interpretation runs out. Second, the activity of construction is for the most part continuous with that of interpretation. “Construction is the building up with given elements, not the forcing of extraneous matter into a text.” (144) That said, Lieber also recognizes that sometimes construction departs from the spirit of the text, such as when the text yields to a superior legal principle.

It would be interesting to trace the influence of Lieber’s distinction between interpretation and construction throughout the next century of legal thought. Theophilus Parsons, for example, discusses the categories in his 1855 Law of Contract. James Bradley Thayer, in his 1898 Treatise on Evidence, expressly declines to adopt Lieber’s distinction, arguing that “neither common usage nor practical convenience in legal discussions support [it]”. (411 n.2) For my purposes, things get interesting with the 1920 first edition of Samuel Williston’s The Law of Contracts. In section 602, “Construction and interpretation,” Williston makes what I view as two improvements on Lieber’s theory.

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Interpretation and Construction 1: Francis Lieber — Greg Klass

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Post by Greg Klass

In several posts on DIRECTV v. Imburgia (here, here and here), I suggested that the interpretation-construction distinction illuminates some of the Supreme Court’s recent arbitration cases. The interpretation-construction distinction has recently been receiving more attention from con law theorists than from contract theorists. (See, e.g., here, here and here.) I’ve been working on a larger project on contract interpretation and construction, and want to use a few posts here to share some of what I’ve learned about the history and development of the distinction. What I have only scratches the surface. The history is a rich vein waiting to be mined. These posts describe only the outlines of the story as I currently understand it. In my telling, it has three protagonists: Francis Lieber, Samuel Williston and Arthur Linton Corbin.

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North American Workshop on Private Law Theory — Eric Claeys

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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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Is a Covenant-Not-To-Sue A License? — Christopher Newman

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Post by Christopher Newman, George Mason University.

Thanks to Jorge for his thought-provoking post.  It’s a thrill to have smart people find your work worth picking up and using for something.  Here are a few responsive thoughts of my own.

Because the term “license” encompasses a variety of interests comprising differing sets of jural relations, I think it’s important to specify what exactly is at stake in any given context when we ask “does a CNS amount to a license”?   As Jorge notes, the actual posture of Meso makes it a bad vehicle for this (nevertheless important and interesting) question, because the argument there really has nothing to do with identifying the substantive content of the property interest (if any) that accrues to the obligee of a CNS.   Meso is trying to obtain standing to enforce use restrictions that are purely contractual; bizarrely, they are in the position of arguing the equivalence of contract and property not to draw implications that sound in property, but simply to make a round trip back into contract.

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Missing the Mark on Duty, Again. Regents v. Superior Court — Goldberg & Zipursky

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Post by John C. P. Goldberg & Benjamin C. Zipursky

The California Supreme Court has an iconic status in American tort law. It is, after all, the Court that gave us strict products liability. It also led the charge to liberate negligence law from no-duty rules that barred various claims against negligent drivers and landowners.

Perhaps the best known of the Court’s duty decisions is Tarasoff v. Board of Regents (1976). A Berkeley graduate student (Poddar) became obsessed with a young woman (Tarasoff). Eventually, Poddar confronted Tarasoff at her parents’ home and stabbed her to death. The Court held that, although Tarasoff lived off campus and was not an enrolled student, because Poddar had talked about killing Tarasoff with his therapists, they were obligated to take steps to protect her. Like most other Torts professors, we teach Tarasoff as emblematic of the California Court’s then-progressive, pro-plaintiff disposition, and its role as a trailblazer for courts around the country.

Imagine our surprise, then, to read a recent California Court of Appeal decision ruling that, so far as California law is concerned, universities owe no duty to their students to protect them against attacks by other students. More jarring still was that this case—Regents v. Superior Court—featured both another horrific knife attack and the same defendant as in Tarasoff: the Regents of the University of California. As Justice Perluss argued in a persuasive dissent, the Court of Appeal’s holding that UCLA owed no duty of care to its student is untenable. The core issue in the case is not duty, but breach (and perhaps causation).  Breach, of course, is a question for the jury.  

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Reinvigorating the Public-Private Law Divide: A Hohfeldian Construction of the State — Ted Sichelman

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Post by Ted Sichelman

In a previous NPL post, I drew upon the work of Wesley Hohfeld to counter two major arguments often levied against the public-private law distinction. To do so, I implicitly assumed that a third major criticism—namely, that “the State” is a vague and ambiguous concept—was wanting. Here, I squarely address this assumption.

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DIRECTV v. Imburgia and Interpretation vs. Construction — Greg Klass

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Post by Greg Klass

I don’t know whether anyone else has noticed, but many of the Supreme Court’s recent arbitration cases raise the distinction between interpretation and construction. I do not think that the Court, which is not especially strong on contract doctrine, has noticed. But it’s lurking in the background. The distinction is especially relevant to understanding what is going on in DIRECTV v. Imburgia, which I blogged about last week.

If you’re not familiar with the interpretation-construction distinction, here’s Corbin’s summary, from the first edition of his treatise:

By “interpretation of language” we determine what ideas that language induces in other persons. By “construction of the contract,” as the term will be used here, we determine its legal operation—its effect upon the action of courts and administrative officials. If we make this distinction, then the construction of a contract starts with the interpretation of its language but does not end with it; while the process of interpretation stops wholly short of a determination of the legal relations of the parties.

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New Contributions to the Law of Property by Henry Smith: Realism, Numerus Clausus, and Custom– Yonathan Arbel

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Post by Yonathan Arbel

Professor Henry Smith has recently published two new engaging and interesting papers in the area of property law, both part of different symposia. For the symposia lists of papers, see here and here, and for the papers, see here and here (citations at the bottom of the post).

The first is part of a symposium where the main question was the enduring appeal of doctrinal analysis in private law, despite the “we-are-all-realists-now” dominant point of view. There are many great contributions there, and Smith takes this question to the area of property. He makes a simple but strong argument: the most basic of property doctrinal categories (or modules)—property as a law of things, the centrality of possessory rights, and property law as a partly formal system—stands tall in the face of the realist onslaught because, far from being transcendental nonsense, they serve important social functions, namely, they serve as information heuristics for complex social situations.  Smith surveys changes to property law since the times of the realists and shows that wherever changes occur, they were around the edges of property, and that the basic categories were left largely untouched despite the impression one might get from reading purely academic works.

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Charles Fried, Contract as Promise, 2.0 — Yonathan Arbel

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Post by Yonathan Arbel

The second edition of Charles Fried’s foundational book ‘Contract as Promise’ is now out in print, and to celebrate the event, Harvard Law School held a special panel comprising of Charles Fried himself as well as other HLS professors.

The event itself was filmed and the YouTube link is appended at the bottom of this post. The panel discussion was great and Charles Fried untied many of the hard knots in the earlier edition of his book. His approach is neatly summarized in a new concluding chapter to his book, aptly titled ‘Contract as Promise in the Light of Subsequent Scholarship—Especially Law and Economics’, which clearly and fairly describes many of the critiques launched at his book, and presents his version of things.

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Private and Public Law Fundamentalisms — Daniel Markovitz

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Post by Daniel Markovitz

I’d like to begin by thanking John and Henry for inviting me to post here and for permitting me to join up a little late.

I intend to devote my posts to reportage as well as to opinion—among other things by advertising new scholarship in private law, especially by writers in the early stages of their careers, that I regard as excellent.  So please send manuscripts for me to relate.

Nevertheless, I’d like to devote this initial post to explaining why I am delighted that this blog — and other similar projects, including Yale’s newly inaugurated Center for the Study of Private Law — has been got going and why I’m glad to participate.

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

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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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The New Private Law – the View from Germany — Henry Smith

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Post by Henry Smith

The Alster

This summer I spent a month visiting the Max Planck Institute for Foreign and International Private Law, in the group headed by Prof. Reinhard Zimmermann.  It was an enjoyable and productive visit, and it prompts me to raise a comparative issue on this blog.  In addition to the similarities and differences between common and civil law, which are sometimes overstated, there is a big difference between American and German private law scholarship, which is reflected in the law itself.  

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

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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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A School’s Duty of Care to its Students: Munn v. Hotchkiss School — Goldberg & Zipursky

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Post by John C. P. Goldberg & Benjamin C. Zipursky

Having participated in intensive debates among tort scholars over the place of duty in negligence law, we were especially interested to see the Second Circuit’s recent decision in Munn v. Hotchkiss School, No. 14–2410–cv., 2015 WL 4604288 (2nd Cir. Aug. 3, 2015).  (Thanks to the Volokh Conspiracy and How Appealing for bringing the case to our attention.)  

Facts and Outcome in the Federal Courts. 

Fifteen-year old Cara Munn was bitten by a tick while hiking on a forested mountain in China during a summer trip organized by Hotchkiss, her New England prep school. The tick transmitted encephalitis, which in turn caused Cara serious neurological damage, leaving her permanently unable to speak. Cara and her parents sued Hotchkiss in federal district court, arguing that the school was negligent under Connecticut law for failing to warn them that the trip might bring her into contact with disease-bearing insects, and in failing to take steps to ensure that Cara took protective measures such as using insect repellant, wearing proper clothes while walking in forested areas, and checking for ticks. A jury awarded them $10 million in economic damages and $31.5 million in noneconomic damages.

Hotchkiss appealed. A unanimous decision by a very able Second Circuit panel comprised of Judges Walker, Lynch, and Lohier neither affirmed nor reversed. Instead, in an opinion by Judge Walker, it certified two issues to the Supreme Court of Connecticut:  (1) whether public policy supports the imposition of a duty of care in such circumstances, and (2) whether the damages award was excessive.

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

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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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Private Law Consortium, Day 2 part a — Yonathan Arbel

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Post by Yonathan A. Arbel

Continuing Janet Freilich‘s post covering the first day of the consortium, here follows my take on the second day, which was also very successful. I will divide my summary to two separate posts, so wait for updates… In this post I cover the contributions of John Goldberg, Stephen Smith, and Robert Caso and Guilia Dore.

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Private Law Consortium, Day 1

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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

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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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