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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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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Causation and Care in Tort Law — Keith Hylton

Post by Keith Hylton

Causation is a topic that has generated a lot of interest from torts theorists.  Law and economics has been a bit late to the party, but at least they have brought some interesting findings with them.  The innovation offered by law and economics is a set of predictions about the incentive effects of causation rules.  This distinguishes law and economics from traditional moral reasoning because the law and economics approach makes statements about the actual effects of causation rules on tortious conduct.  To law and economics scholars, it is only after clear predictions can be made about incentive effects that we can start to make moral assessments of the law.  From the perspective of economics, it is of little use to offer a moral assessment of some legal doctrine without being able to say anything about its effects on behavior.  A law may seem morally ideal in its expression, but if its effect is to encourage socially destructive behavior, then the law must be considered a moral as well as an operational failure.

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Private Law Consortium, Day 2 part a — Yonathan Arbel

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

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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Property and Contract at a Legal Acme? Stare Decisis and the Supreme Court — John Golden

Post by John M. Golden

In Kimble v. Marvel Entertainment, LLC, No. 13-720, slip op. (U.S. S. Ct. June 22, 2015), the U.S. Supreme Court kicked off a momentous week with an opinion highlighting the importance of stare decisis.  More particularly, the justices grappled with whether to overrule a half-century-old holding “that a patent holder cannot charge royalties for the use of his invention after its patent term has expired.”  Id. at 1.  A six-justice majority chose to stick with the prior holding despite what the majority conceded to be a “broad scholarly consensus” criticizing this precedent on economic grounds.  Id. at 13.  In explanation of the decision, Justice Kagan wrote, inter alia, that (1) “[r]especting stare decisis means sticking to some wrong decisions”; (2) precedent involving interpretation of a statute has “enhanced force” compared to, say, precedent involving an interpretation of the U.S. Constitution; and (3) precedent involving property or contract rights, such as the patent law precedent in question, is further “superpowered” “because parties are especially likely to rely on such precedents when ordering their affairs.”  Id. at 7-10.  Indeed, according to the Court, “considerations favoring stare decisis are ‘at their acme’” in “‘cases involving property and contract rights.’”   Id. at 9 (quoting Payne v. Tennessee, 501 U.S. 808, 811 (1991) (Rehnquist, C.J.)).

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How Should We Understand Private Law Concepts? — Andrew Gold

Post by Andrew Gold Given the recent blog debate about the distinctiveness of private law, I would like to raise a separate but related issue.  Often, when we talk about what private law is, we are concerned with what separates private law from other fields – how do we distinguish private law from public law?  … Read more

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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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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Interpretation in Omnicare v. Laborers District Council Construction Industry Pension Fund – Greg Klass

Post by Greg Klass

In this first post, I’d like to point readers to opinions in Omnicare v. Laborers District Council Construction Industry Pension Fund, 575 U.S. ___ (2015). Though a securities fraud case, the Omni opinions raise more general questions about the private law of deception.

The issue in Omni was whether a company could be held liable under 15 U.S.C. § 77k(a) for so-called statements of opinion, such as “We believe that our contract arrangements with other healthcare providers, our pharmaceutical suppliers and our pharmacy practices are in compliance with applicable federal and state laws.” Slip op. at 3. The Sixth Circuit had held that such statements were actionable if the company’s beliefs were “objectively false.” The Supreme Court reversed, based on the common law rule that a statement of belief is (in most cases) actionable only if the speaker does not actually hold the belief. It is not enough to show that the belief was false. A plaintiff must show that it was not actually held.

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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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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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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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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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