Apply to be a Qualcomm Fellow in Private Law and Intellectual Property!

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property.  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 intellectual property and … Read more

Apply to be a Private Law Fellow!

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for a 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.  For more information and application procedures, … Read more

Tort and the Taking or Assigning of Responsibility – John Golden

Post by John Golden

Readers of this blog might be interested in a Jotwell post by Scott Hershovitz of the University of Michigan and the associated draft paper by David Enoch of Hebrew University, Tort Liability and Taking Responsibility. (Thanks to my colleague Susan Morse for pointing this out!) The paper by Enoch explores the question of what benefit a tort system focused on negligence might provide that is absent from an idealized version of New Zealand’s no-fault system of compensation through the Accident Compensation Corporation. As described on page 4 of Enoch’s paper, “[w]e are to imagine the best (realistic) version of the New Zealand” system:

Accidents happen … at roughly the rates they happen elsewhere. People are harmed and compensated. But they are not compensated by “their” harmers. Rather, all risk-creators contribute to a general pool …, and those harmed are then compensated from this general pool.

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The Supreme Court’s New Equity: We’re Not in Kansas Anymore – Henry Smith

Post by Henry Smith



This is a private law blog, but that doesn’t make the U.S. Supreme Court irrelevant. This past term, in Kansas v. Nebraska, 135 S. Ct. 1042 (2015), the Court afforded equitable relief to both sides in a dispute over water taken by Nebraska from the Republican River Basin under an interstate compact involving those two states and Colorado, along with and a previous settlement. The case has it all: water, interstate relations, federal supremacy, original jurisdiction, contract law – and equity. Although there is a lot to say about this case, it is this last aspect – the role of equity – that I think is underappreciated or mis-appreciated.

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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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SIOE (ISNIE) 2015: Institutions, Organizations, Economics — Yonathan Arbel

Post by: Yonathan Arbel

As Dan Kelly noted in his last post, this weekend the SIOE (previously known as ISNIE) conference was held at Harvard Law School. The conference was, in my slightly biased judgment (I was assisting the president-elect Henry Smith and Janet Freilich with its organization), very successful, with about 200 paper presentations and about 250 participants. It was also very international, with participants hailing from 29 countries worldwide. The program can be found here; as the program shows, there is a great richness in the topics, methodologies, and institutional affiliations of speakers. This is a by-product of the ambitious goal the society set out for itself of studying the “nature, behavior, and governance of organizations and institutions.”

Henry Smith presents Harold Demsetz with the Elinor Ostrom Lifetime Achievement Award


Let me note a few highlights and themes:

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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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Arbitration and Opportunism — Aditi Bagchi

Post by Aditi Bagchi

A few weeks ago the Sixth Circuit decided Shy v. Navistar Int’l, Corp., in which a retiree trust fund sued Navistar for allegedly manipulating its corporate structure to avoid payments to the fund required under a consent decree. Navistar paid large sums to the fund for several years, culminating in a $71.6 million payment in 1999. Thereafter the payments abruptly stopped. The fund claims Navistar created a variety of entities to shield its substantial profits from the reach of the consent decree.

At issue in the federal case was not the merits of the fund’s breach of contract claim but its right to pursue the claim in court, given an arbitration provision that covered disputes over the “information or calculation[s]” provided by Navistar. The district court had found that the arbitration term applied but that Navistar had waived its right to insist on arbitration as a result of its conduct in litigation. The appellate court agreed that the arbitration term applied but reversed the finding of waiver. A dissenting judge argued that the arbitration term did not apply, but that even if it did, Navistar waived arbitration by failing to raise it until its prospects in litigation began to fade.

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Fuller & Perdue: The Gap Between Motive and Measure — Greg Klass

Post by Greg Klass

Lon Fuller and William Perdue’s The Reliance Interest in Contract Damages: 1, 46 Yale L.J. 52 (1936), is best known for its analytic claim that there are three basic measures of contract damages: restitution, reliance and expectation. Also familiar are the article’s normative and descriptive theses: that that the reason for judicial intervention decreases as one moves from restitution to reliance and then from reliance to pure expectation, and that in many cases courts calculate damages with an eye to compensating reliance rather than fulfilling the promisee’s expectation. Often overlooked is the article’s methodological claim, which Fuller and Perdue label “the divergence of measure and motive” (66). “Measure” here stands for the remedial measure that attaches to the violation of a legal duty and “motive” designates the duty’s purpose or raison d’être. The divergence of measure and motive claims that the tie between rights and remedies is looser than is commonly thought. It follows that remedies are the wrong place to start when constructing an interpretive theory of legal duties.

Fuller and Perdue offer two arguments. First, practical considerations such as difficulties in proof or measurement often recommend an alternative remedy. “[E]ven where it is reasonable to suppose that a single interest furnishes the exclusive raison d’être of legal intervention it is still possible for reasons of convenience and certainty the court may choose a measure of recovery which differs from that suggested by the interested protected” (66-67). An example can be found in Fuller and Perdue’s explanation of the expectation measure as designed to protect the nonbreaching party’s reliance interest. The expectation measure captures opportunity costs, which are often difficult to prove. And the expectation measure facilitates reliance by dispensing with its proof. More generally, administrative costs, problems of proof, the possibility of error and other practical pressures can all push remedies in directions that might not correspond to the best explanations of the associated duties.

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Private Law – A Response to Bainbridge — John Goldberg & Henry E. Smith

Post by John Goldberg and Henry Smith. Steve Bainbridge’s reaction—“WTF is ‘private law’?”—is understandable. It shows why the “New Private Law” is new! Along with Matt Bodie, he asks why areas like corporate law are not part of private law. The short answer is that they are, up to a point. Corporate law, family law, … Read more