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Call for Applications: Post-Doc at Berkeley Center for Private Law Theory

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The Berkeley Center for Private Law theory is happy to announce its call for Post-Doc Fellowship applications for a two-year position with an anticipated start date in Fall 2024. For more information about the position, including required qualifications and application materials, please visit: https://aprecruit.berkeley.edu/JPF04161. A PDF version of the full announcement can be accessed here.

Fifteen Minutes of Equity

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For those who persist in the incorrect belief that equity is of antiquarian interest only, equity is now on YouTube. Recently Christophe Gösken of ETH Zurich interviewed Henry Smith about two of his papers on equity as meta-law. Video here. The papers can be found here and here.

Apply to be a Student Fellow

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We are now accepting applications for student fellows for the academic year 2022-2023! Applications will be accepted until Friday, September 16, 2022. See the call for applications for additional details and requirements: Student Fellowship in Private Law – Call for Applications

Call for Papers: AALS Remedies Section

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The AALS Section on Remedies invites paper submissions for a panel on “Remedies in the Restatements” at the January 3–7, 2023 Annual Meeting. Please note that this meeting is currently planned to be held wholly in person. The Remedies session is scheduled for 3 to 4:40 pm on Thursday, January 5. The session, which is … Read more

Call for Applications: Safra Center Post-Docs at Tel Aviv University

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The Edmond J. Safra Center for Ethics at Tel Aviv University is happy to announce its call for Post-Doctorate and Doctoral Fellowship applications for the academic year 2021-22. We encourage applicants from all disciplines and fields, including economics, social sciences, business, the humanities, and the law. Please check our website — or a PDF version of the … Read more

Retroactive Rights of Action

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By Samuel Beswick, Assistant Professor, Peter A. Allard School of Law, The University of British Columbia I recently suggested on Balkinization that a storm seems to be brewing concerning the place of non-retroactivity doctrine (also called the doctrine of “prospective overruling”) in federal law. Non-retroactivity doctrine attempts to define the temporal scope of novel judgments … Read more

Knowledge & Normative Convergence in Property Law

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Post by Malcolm Lavoie. One of the most intriguing features of New Private Law scholarship is its recognition that diverse normative accounts often converge in explaining core private law doctrine. For instance, the right to exclude as an incident of ownership can be understood in consequentialist terms as a means of accounting for information costs, … Read more

Post Doctorate Fellowship: Markets, Ethics, and the Law: Edmond J Safra Center for Ethics at Tel Aviv University

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The Edmond J. Safra Center for Ethics at Tel Aviv University is accepting applications for its 2020-21 post-doctorate fellowship program. The Center offers grants to outstanding researchers who study the ethical, moral and political aspects of markets, local or global, real or virtual. The Center encourages applications from all disciplines and fields, including economics, social … Read more

Freilich on Prophetic Examples

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Post by Janet Freilich Patent law – like many areas of private law – is riddled with unusual, obscure, and sometimes incomprehensible rules. In a forthcoming paper, I draw attention to a particularly puzzling doctrine of patent law: patents can include fictional experiments and made-up data. Take, for instance, the following experiment published in a … Read more

Call for Applications: Safra Center Post-Docs at Tel Aviv University

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The Edmond J. Safra Center for Ethics at Tel Aviv University is happy to announce its call for Post-Doc Fellowship applications for the academic year 2019-20. We encourage applicants from all disciplines and fields, including economics, social sciences, business, the humanities, and the law. The Edmond J. Center Safra stands at the forefront of academic … Read more

Two Suggestions for Conceptual Property Theory

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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

Don’t Talk about Him: Sir Cliff Richard OBE v. BBC

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Post by Samuel Beswick.

Sir Cliff Richard is the latest celebrity to win substantial damages for invasion of privacy by a news organization in England. In the summer of 2014, the BBC broke the story that Sir Cliff was under Police investigation in relation to an alleged historic sex offence. It broadcast with “colour and sensationalism” [¶55] the police search of his Berkshire home: dispatching reporters and a helicopter to the area, as well as to Sir Cliff’s other known residences in Europe. The singer was holidaying in Portugal with friends at the time. The Police dropped the investigation 22 months later. They brought no charges.

Sir Cliff sued the Police (who settled for £700,000 and a public apology) and the BBC. On July 18, the High Court of England and Wales found against the BBC and ordered payment of general, aggravated and special damages: Richard v. British Broadcasting Corporation [2018] EWHC 1837 (Ch).

Earlier this year my co-author and I made the argument that English privacy law is heading down a divergent path from other common law countries by embracing a framework that in practice favors privacy interests above conventional freedoms of speech and of the press. Mr Justice Mann’s judgment would appear to be a further illustration of our thesis. 

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

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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

Rakoff on the Five Justices of Contract Law

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Post by Erik Hovenkamp.

    In the private law workshop’s final meeting of the fall semester, we were pleased to host Professor Todd Rakoff, who presented his recent article, “The Five Justices of Contract Law.”  Rakoff begins by summarizing the conventional wisdom on the role of justice considerations in contract.  These accounts portray justice as having a fairly narrow ambit, taking a backseat to notions of efficiency and the freedom of exchange.  As an extreme example, Rakoff highlights the tendency of some law professors to regard justice considerations as being relegated entirely to the rarely successfully invoked doctrine of unconscionability.

    In Rakoff’s view, such characterizations markedly understate the extent to which contract law is shaped by the courts’ pursuit of justice.  He contends that justice considerations have had a significant influence on many common law doctrines, including some remedial standards, and that this is borne out in both the case law and the Restatements.  He synthesizes this broader role of justice into five distinct applications, the eponymous “Five Justices.”  Aside from characterizing these applications independently, Rakoff discusses instances in which they may conflict or overlap.

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Algorithmic Identification of Property Law Families

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Post by Erik Hovenkamp      In the most recent Private Law Workshop, Yun-Chien Chang discussed his ongoing and very interesting effort (with Nuno Garoupa and Martin Wells) to use machine learning techniques to classify legal systems into families—groupings whose members are similar to each other, but relatively distinct from those in other groups.  The … Read more

Internal and External Accounts of IP Law — Eric Claeys

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Post by Eric Claeys, George Mason University, Antonin Scalia Law School

In a recent post on this blog, Henry Smith asked some important questions about methodological commitments in American scholarship about intellectual property.  Henry distinguished between (on one hand) “external” and (on the other hand) “internal or interpretivist” frameworks for studying law.  He then noted that, in American IP scholarship, “scholars overwhelmingly adopt consequentialist and even utilitarian frameworks” in relation to patent law and repeat those same tendencies in copyright (though not to the same degree as in patent).  Henry’s post invited readers to consider why IP scholarship is so much more externally-oriented than other fields of scholarship on private law.

I completely agree with Henry’s general impressions about normative frameworks  in IP.  I also agree with his suggestion that IP scholars should reflect more upon why and how external accounts came to predominate in IP scholarship.  In this and a few subsequent posts, I’d like to offer a few thoughts.  In later posts, I want to suggest a different demarcation than Henry’s demarcation between external and internal-interpretivist approaches.  But my concern on that point is fairly specialized, removed from the big questions Henry is raising.  Before running off with the proverbial ball to one corner of the field, I hope in this post to offer some thoughts about the state of play in the middle of the field.

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Journal of Tort Law Invites Submissions

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The Journal of Tort Law is the only peer-reviewed journal devoted to tort law in the United States. It offers several advantages to those submitting scholarship. First, your work will be reviewed by peers. This is particularly important for more technical pieces. Second, there is no submission cycle. Articles can be submitted at any time. … Read more

Markets, Ethics, and the Law Postdoctoral Fellowships

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The Edmond J. Safra Center for Ethics at Tel Aviv University is accepting applications for its 2017-18 postdoctoral fellowship program. The Center offers grants to outstanding researchers who study the ethical, moral and political aspects of markets, both local and global from all disciplines and fields, including economics, social sciences, business, the humanities and the … Read more

Apply for the Qualcomm Fellowship in Private Law and Intellectual Property

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The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Qualcomm Fellowship in Private Law and Intellectual Property. The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and … Read more

Apply to be a Private Law Fellow at the Project

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The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Postdoctoral Fellowship in Private Law. The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common … Read more

Yale Law School’s Seminar in Private Law: Dispute Resolution in Universities — Sadie Blanchard

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Post by Sadie Blanchard, Research Fellow Yale Law School

At the last session of this spring’s Seminar in Private Law, we considered dispute resolution in universities. The speakers were Jonathan Holloway, Dean of Yale College and Professor of African American Studies, History, and American Studies, and Mary Rowe, who teaches at MIT’s Sloan School of Management and was MIT’s Ombuds for over 40 years. In view of the tumult on campuses over the past year, it seemed apt to consider universities as part of our survey of dispute resolution beyond the state. What is distinctive about conflicts in this setting? What processes are best suited to resolve or manage them? Are protests evidence of a failure of dispute resolution, or are they a desirable or inevitable form of complaint?

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The Iran Nuclear Deal and Negotiations Between Enemies — Sadie Blanchard

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Post by Sadie Blanchard, Research Fellow Yale Law School

In its penultimate session of the spring, the Seminar in Private Law at Yale Law School considered the negotiations toward the Iran nuclear deal. Catherine Ashton, former European Union foreign minister who was a key participant in the negotiations, spoke together with Philip Bobbitt of Columbia Law School.

Ashton discussed the dynamics of the negotiations and the decisions about structuring them that were, in her view, critical to their success. Among them was a “noises off” policy instituted early by the delegates: they mapped out the issues that had to be part of a deal and excluded other considerations from being raised in the negotiations. That policy served to prevent future derailment of the critical negotiating points.

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