Gold, Goldberg, Kelly, Sherwin & Smith – The Oxford Handbook of the New Private Law

Post by Andrew Gold, John Goldberg, Daniel Kelly, Emily Sherwin, and Henry Smith We have some good news – The Oxford Handbook of the New Private Law has just been published (Oxford; Amazon)!  The Handbook offers exciting developments in scholarship dedicated to the study of private law in general, and to the New Private Law … Read more

Chang & Smith – Convergence and Divergence in Systems of Property Law

Post by Henry Smith Yun-chien Chang and I have a paper out on SSRN about comparative property law. We differentiate between aspects of property law that are structural versus those that are stylistic and between those that are more integrated into the law and those that are more detachable.  We derive some predictions for cross-linguistic … 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

Comment on Claeys, “Two Suggestions for Conceptual Property Theory”

Post by Henry Smith In his post, Eric Claeys introduces a couple of important forthcoming articles.  I welcome these contributions to the already extensive “debates” over property theory.  These articles are a real advance in the morally oriented property theory literature. I’d like to focus how they bring to that literature considerations that are more … Read more

Two Suggestions for Conceptual Property Theory

Post by Eric Claeys In contemporary legal and philosophical theory, three perspectives loom large. For a century and more, conventional wisdom held that the best way to conceive of property is as a bundle of rights. In the nineties and the “oughts,” bundle views were questioned by scholars arguing that exclusion is crucial to property. … Read more

HLS Private Law Workshop: Eric Claeys, Harms, Benefits, and Rights in Property and Private Law

Post by Patrick Goold

In the most recent HLS Private Law Workshop, Professor Eric Claeys presented a chapter of his forthcoming monograph, Natural Law, Natural Rights, and the Foundations of American Property Law. This monograph presents a natural law theory of American property law. The monograph argues that individuals have pre-political rights to use tangible resources in ways that promote human flourishing. Contemporary property doctrine embodies this logic and, in form and substance, upholds those rights.

The chapter Claeys presented discussed and responded to criticisms of common law property doctrine frequently made by law and economics scholars. Economists, starting with Ronald Coase, tend to view property law as an instrument for settling disputes about incompatible uses of resources (what Claeys labels the “incompatible use framework” of property).  When a rancher’s cattle strays onto a farmer’s wheat fields, or a railroad emits sparks onto a farmer’s hay bales, a Coasian treats the respective parties’ “rights” as the conclusion of, rather than a component of, its analysis.

As Coase acknowledged, this is not how courts have historically resolved such disputes. Rather than resolving the case before them based on transaction-cost analysis, courts tend to ask a series of conceptual questions, including: did the plaintiff have a right to prevent the defendant’s behavior? did the defendant’s actions cause the plaintiffs loss? and, did the plaintiff suffer cognizable harm? Coase and his progeny have viewed such reasoning with skepticism. At the root of this skepticism is the belief that the core concepts, such as “right”, “harm” and “causation,” lack substance and therefore, on their own, cannot tell a judge how to resolve disputes. To use a well-worn example, Coase argued that “causation” is reciprocal; that is, when a railroad’s sparks burn down a nearby farmer’s hay bales, both the railroad and the farmer are “causes” of the loss because both could have taken measures to prevent it.  Accordingly asking whether the defendant’s actions “caused” the plaintiff’s harm is not a cogent way to decide who ought to win in property litigation.

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Harvard Law School’s Private Law Workshop: Christopher Newman, Hohfeld and the Theory of In Rem Rights: An Attempted Reconciliation

Post by Patrick Goold

Few questions have received more attention in law than the question “What is Property?” Is an in rem right a right over a thing, as the traditional (and perhaps resurgent) view holds? Or is the term “right in rem” an outmoded reference to a bundle of jural relations existing between individuals (as Hohfeld argued almost a century ago)? Is there a way to reconcile these two competing theories—for property to be both a right over a thing and bundle of rights? At this week’s HLS Private Law Workshop, Christopher Newman presented a work-in-progress in which he attempted a reconciliation of these apparently conflicting understandings of in rem rights.

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