Public vs. Private Law

New Book—Lakefront: Public Trust and Private Rights in Chicago, by Joseph D. Kearney and Thomas W. Merrill

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Post by Henry Smith I have just read and greatly enjoyed this wonderful new book by Joe Kearney and Tom Merrill about the shaping of the Chicago Lakefront. Sometimes this shaping is literal (or littoral?), because Kearney and Merrill embed a highly expert and engagingly written history of the legal controversies surrounding the Lakefront with … Read more

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

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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

HLS Private Law Workshop: Rebecca Williams, The ECJ’s ‘Remedies Jurisprudence’ and the Role of Domestic Courts

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Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School One of the major catalysts behind the resurgence in England and Wales of the law of unjust enrichment has been the influence of fundamental rights jurisprudence of the European Union. Where a member state levies charges on persons contrary to EU law (such as … Read more

Why Private Law? — Patrick Goold

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Post by Patrick Goold

I have a question for the readers of this blog: Why make a distinction between public law and private law? Note, my question is not what is the distinction, but why is it a useful and helpful division to make? Of course, both questions are important and interrelated, but for now, I would like to focus on the latter.

This may be the central question in the New Private Law. Prior private law scholarship has typically fallen into two broad schools. On one hand, there are the Private Law Skeptics, who argue that all law has “public” ends, and ergo all law is public. On the other hand, we find Private Law Disciples, who point to the millennia-old private-public law distinction and assume it will simply continue. New Private Lawyers are different from both traditional camps. We do not take for granted the private-public distinction. Rather, as inclusive pragmatists, we demand to know whether this is a distinction worth retaining. What good does it do us? But, contrary to Private Law Skeptics, most of us, at least intuitively, believe that something is or can be accomplished by retaining the distinction. So the question is: what is that?

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Communal Property and Two Legal Cultures — Henry Smith

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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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Hohfeld Returns to the Supreme Court — Ted Sichelman

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Post by Ted Sichelman After more than a 25-year hiatus, Wesley Hohfeld—one of the preeminent private law theorists of the 20th century—has been cited by Justice Thomas in dissent earlier this week in Heffernan v. City of Paterson (thanks to Shyam Balganesh for the heads up), a case involving the alleged deprivation of free speech … Read more

Summer School Announcment: “Contract Law in a Liberal Society” — Yonathan Arbel

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Post by Yonathan Arbel Dr. Lyn Tjon Soei Len, of the University of Amsterdam,  asked to bring this invitation for their very interesting summer-school to the attention of our readers: From June 29- July 1 the Summer School “Contract Law in a Liberal Society” will take place in Amsterdam. Junior scholars and advanced students will have … Read more

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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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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Title VII Is Not a Tort — Sandra Sperino

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Post by Sandra Sperino, Associate Dean of Faculty and Professor of Law, University of Cincinnati College of Law.

Thank you to John and Henry for inviting me to blog here.

In several posts, I will be blogging about how federal courts are pushing federal discrimination law out of a public law model and into a more private law frame.  There are three major federal discrimination statutes: Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA).  Taken together, these three statutes prohibit employment discrimination based on factors such as race, sex, religion, age and disability.

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