Canada’s Second Biennial Obligations Conference

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By Samuel Beswick, Frank Knox Memorial Fellow, SJD candidate, Harvard Law School On May 10 and 11, the University of New Brunswick Faculty of Law hosted the second biennial Canadian Law of Obligations (CLO) conference. Legal scholars from across Canada, as well as the United States and England, presented their works-in-progress on the theme of Obligations … 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

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

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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

Call for Applications: Postdoctoral Fellowships in Private Law at Harvard Law School

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The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for full-time, one- to two-year residential appointments, starting in the fall of 2019 — in particular, it is seeking applicants for both the Postdoctoral Fellowship in Private Law and the Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property. Application … 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

Oxford Studies in Private Law Theory (Miller & Oberdiek eds.) — Call for Papers

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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”

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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

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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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AALS Section on Remedies – Call for Papers [Updated]

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Post by Erik Hovenkamp. The AALS Section on Remedies will host a program entitled, “Intellectual Property Remedies at the Supreme Court and Worldwide,” to be held on January 4 at this year’s Annual Meeting in New Orleans (Jan. 2-6). The Call for Papers is below. AALS Remedies Section – Call for Papers UPDATE: The deadline … Read more

Private Property and Public Franchise: Patents Under the Supreme Court’s “Public-Rights Doctrine”

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Post by John Golden

In an April 24 decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U.S. __ (2018), the United States Supreme Court addressed a question previously highlighted on this blog (see posts of May 30, June 13, and December 4, 2017): the extent to which patents involve public or private rights for purposes of U.S. constitutional law. Specifically, the Court held that whether a patent claim should be canceled for lack of novelty or nonobviousness is “a matter involving public rights” and therefore may be determined by an administrative agency, the U.S. Patent and Trademark Office (USPTO), rather than an Article III court. With Justice Thomas writing for a seven-Justice majority, the Court emphasized its view that, although patents are a “form of property,” the decision to grant a patent—a matter long consigned to the USPTO—is a decision on “the grant of a public franchise” and thus liable to congressional reservation of administrative power “to revoke or amend” the grant. The Court thereby signals the existence of a subcategory of privately held property—namely, public franchises granted to private persons—that is particularly susceptible to administrative adjudication.

But what is a “public franchise”? The Court does not give a crisp definition. Nonetheless, by pointing to aspects of patents that apparently support their classification as public franchises, the Court provides some hints. First, the Court notes that the right to exclude provided by a patent “ ‘did not exist at common law’ ” (quoting Gayler v. Wilder, 51 U.S. (10 How.) 477, 494 (1851)), and is instead “a ‘creature of statute law’ ” (quoting Crown Die & Tool Co. v. Nye Tool & Mach. Works, 261 U.S. 24, 40 (1923)). Further, Congress has authorized such rights by exercising its constitutionally granted “power ‘[t]o promote the Progress of Science and useful Arts’ ” (quoting U.S. Const. art. I, § 8, cl. 8). In other words, Congress has provided for patents pursuant to a public purpose. These observations comport with a definition of “public franchise” that Justice Thomas has proffered before: a right or set of rights “ ‘which public authorities ha[ve] created purely for reasons of public policy and which ha[ve] no counterpart in the Lockean state of nature.’ ” Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 848 n.2 (2015) (Thomas, J., dissenting) (quoting Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 567 (2007)).

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Book Announcement: Jennifer Rothman, The Right of Publicity: Privacy Reimagined for a Public World

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Post by Patrick Goold

Last month it was revealed that Facebook shared users’ personal information with political consulting firm, Cambridge Analytica, and that such information may have been used to influence the US 2016 presidential elections and the UK Brexit vote.  For many, this event has highlighted the need for stronger privacy laws in the twenty-first century. Jennifer Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press, 2018) is therefore as timely as it is fun to read. In a monograph packed with illuminating re-readings of leading cases alongside engaging celebrity stories, Rothman argues that a modified right of publicity could be an important tool for protecting individuals’ privacy interests in the Information Age.

The rights of privacy and publicity are sometimes seen as opposites. Privacy protects shrinking violets who wish to avoid the public’s gaze, while publicity protects the interests of celebrities who seek out the limelight, or so it is said. Indeed, some claim that the right of publicity was created precisely because privacy law failed to adequately protect the interests of public figures. According to a common historical narrative, courts frequently rejected celebrities’ attempts to restrain the use of their names and images under privacy law.  Privacy being the last thing any celebrity really needed, judges found privacy laws to be the wrong vehicle for protecting valuable celebrity personas; and thus there existed a need for a new and separate cause of action.  

In The Right of Publicity, Rothman shows the privacy-publicity divide is often an overly simplistic and unhelpful dichotomy. To begin with, the claim that a separate right of publicity was required to protect celebrities’ interests is historically incorrect. The original right of privacy that emerged in the late nineteenth century was regularly employed by public figures (ranging from the likes of inventor Thomas Edison, sportspeople such as golfer Jack Redmond, and politicians such as J.P. Chin) to restrain unwanted publicity. Furthermore, this right was used by individuals to prevent actions that we would now consider commercial misappropriation of name and likeness. Early privacy cases restrained the non-consensual use of an artist’s photo on an advert for life insurance, the use of a famous physician’s signature on quack medicinal pastilles, and there was uproar when society woman Mary M. Hamilton Schuylyer could not use privacy laws to prevent the use of her image on a commercial for flour.  

The true story behind the right of publicity’s origin is far more interesting than the conventional one; it is also, however, far more worrisome and troubling. The right of publicity was created not to adequately protect celebrity interests, but to protect the interests of Hollywood and other big businesses. The new right of publicity enabled businesses to commodify celebrity personas.  Whereas the right of privacy was a non-transferable personal right, the right of publicity was, and remains, a transferable property right. Hollywood and others pushed for the right of publicity’s adoption because doing so enabled them to acquire exclusive rights in celebrity personas, and thus monopolize the commercial exploitation of public figures’ identities.

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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

Equitable Defences as Meta-Law

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Post by Henry Smith To those interested in equity (who isn’t?) and private law defenses, let me offer “Equitable Defences as Meta-Law,” which will be published by Hart this May in Defences in Equity, edited by Paul S. Davies, Simon Douglas, and James Goudkamp.  It can be found at SSRN here.  The chapter shows how … Read more

University of Amsterdam Summer School on ‘Private Law & Vulnerability’

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Post by Patrick Goold The Centre for the Study of European Contract Law (CSECL), of the University of Amsterdam is organizing a Summer School on ‘Private Law & Vulnerability’, to be held 2-5 July 2018 in Amsterdam. The 2018 CSECL International Summer School will provide a cross-disciplinary exploration of the relationships between vulnerability and private … Read more

Conference Announcement: The Administrative-Private Law Interface in IP Law, Harvard Law School, March 29

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The Project on the Foundations of Private Law at Harvard Law School, and the University of Texas School of Law invite you to attend The Administrative-Private Law Interface in IP, a day-long conference held at Harvard Law School on March 29. Intellectual property law is historically part of American private law. IP rights are generally … Read more

Private Law Fellowship at Yale Law School Center for Private Law

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The Yale Law School Center for Private Law is now accepting applications for the 2018-19 Fellow in Private Law.

The Fellowship is designed for graduates of law or related Ph.D. programs who are interested in pursuing an academic career and whose research is related to any of the Center for Private Law’s research areas, which include contracts (including commercial law, corporate finance, bankruptcy, and dispute resolution), property (including intellectual property), and torts. More information about the Center can be found here.

The Fellowship in Private Law is a full-time, one-year residential appointment, with the possibility of reappointment. Up to half of the Fellow’s work time is devoted to operating the Center; the remaining time is reserved for the Fellow’s own scholarship and projects. Duties include organizing the Seminar in Private Law, academic workshops, and conferences, among other Center initiatives, and maintaining the Center’s website (which does not require specialized technical skills).

The Fellow will begin in the Summer or Fall of 2018. Fellows receive a competitive stipend plus benefits and office space at the Yale Law School.

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Post-Doctorate Fellowships at Tel Aviv University

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The Edmond J. Safra Center for Ethics at Tel Aviv University is accepting applications for its 2018-19 post-doctorate 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

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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Patents and the Public-versus-Private-Rights Distinction: Oral Argument in Oil States Energy Services v. Greene’s Energy Group

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Post by John Golden

On November 27, the United States Supreme Court heard oral argument in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-712, a case that gives prominence to a question flagged in prior posts of May 30 and June 13: namely, whether patents involve public or private rights for purposes of the constitutionality of administrative cancellation of issued patent claims.  Article III of the U.S. Constitution states, “The judicial Power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  The Supreme Court has held that, despite this assignment of “judicial Power” and the more general principle of separation of powers, “a matter of ‘public right’ … can be decided outside the Judicial Branch.”  Stern v. Marshall, 564 U.S. 462, 488 (2011).  The Court has recognized that this “public rights exception” extends beyond “actions involving the Government as a party” and encompasses “cases in which the claim at issue derives from a federal regulatory scheme, or in which resolution of the claim by an expert government agency is deemed essential to a limited regulatory objective within the agency’s authority.”  Id. at 490.

In Oil States, the Court confronts the question “[w]hether inter partes review—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents [whose claims have been challenged by a third party]—violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.”  The Petitioner argues that the answer is “Yes” because issued patent rights are private property whose validity “Article III permits only courts to adjudicate.”  Brief for Petitioner 3.  Respondent Greene’s Energy Group argues that the answer is “No” because “[p]atent rights are public rights, that is, derived from a ‘federal regulatory scheme’ and ‘integrally related to particular Federal Government action.’ ”  Brief for Respondent Greene’s Energy Group, LLC 9 (quoting Stern, 564 U.S. at 490–91).  The U.S. government as “Federal Respondent” likewise argues that inter partes review addresses matters of public right and contends that the Petitioner’s “argument confuses the distinct concepts of private property and ‘private rights’—those rights that are not integrally related to federal government action.”  Brief for the Federal Respondent 18, 21. 

Over fifty amicus curiae briefs were filed in Oil States.  These briefs are, in general, too numerous to have their contents described in this blog posting, but you can find discussions of various amicus briefs in separate postings by Dennis Crouch on the Patently-O blog dated August 20, August 28, September 1, and November 1.  For purposes of disclosure, I should note that I participated in the filing of an amicus brief in support of the Respondents contending that questions of patent claims’ validity are matters of public right.  Brief of Amici Curiae Professors of Administrative Law, Federal Courts, and Intellectual Property Law in Support of Respondent 18–26.  This brief also noted a long-held (albeit not unanimously held) scholarly view that, under the Court’s precedents, even questions of “private right” may, generally speaking, be subjected to administrative adjudication as long as the rights in question are creatures of federal statutory law and as long as the results of administrative adjudication are subject to judicial review that is de novo on questions of law and at least in the nature of substantial-evidence review on questions of fact.  Id. at 28–29.  Under this view, Article III constraints seem satisfied by the Patent Act’s provision of a right to appeal the results of inter partes review to the U.S. Court of Appeals for the Federal Circuit.  Id. at 29–31.

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HLS Private Law Workshop; Maureen Brady, From Rocks to Rods: The history and theory of metes and bounds demarcation

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Post by B. Palle, Graduate Fellow and SJD Candidate at Harvard Law School

In the most recent Private Law Workshop, Professor Maureen Brady presented her fascinating historical study of the development of metes and bounds demarcation in property law in pre-Revolution New Haven.

New England colonies mandated land recording at least from the early decades of the Seventeenth Century. But these requirements did not specify that the recording be in any standardized form. And when landowners in colonial New Haven (in the 1690’s, say) transferred land or recorded deeds, they relied on a peculiar system to demarcate boundaries: the system of metes and bounds. Under this system, landowners would demarcate boundaries by referring to geographical features such as creeks, orchards, boulders, and trees, as well as neighbors who owned adjacent parcels of land. One might suppose that such a system would impose “astronomical” information costs: the effort required in interpreting and understanding such an idiosyncratic system would seem prohibitively high. Nevertheless, the system worked well for a time. There was very little litigation over property in New Haven before 1700: Brady says that her research revealed just three such disputes. But why did the residents of New Haven (and, indeed, in New England more generally) choose to adopt such an apparently costly mode of demarcating boundaries? And how and why did such a system function so smoothly. In analyzing these questions, Brady looks beyond paper records (such as land deeds) to the social context in which the system operated.

Until the 18th Century, the residents of New Haven constituted a “small,” “homogenous” and a “cohesive” group. Within this close-knit community, residents established a set of social practices that helped them identify the boundaries of their land holdings with reasonable certainty. Brady mentions two: perambulations and land distribution programs.

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Apply to be a Private Law Fellow at Harvard Law School

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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