Yale Law School’s Seminar in Private Law: Outcomes and Authority in International Investment Law

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Post by Sadie Blanchard, Research Fellow Yale Law School

In the last meeting of the Seminar in Private Law, Jan Paulsson and Diane Desierto reflected on their experience in the field of international investment law and how that experience informs their views of the legitimacy questions facing the field. Participants also considered the theoretical basis of authority of international investment protection and asked about possible deleterious effects of this legal regime. Desierto cut her teeth as a government attorney for the Philippines while it was defending against its first investment treaty claim. She now represents investors and states in disputes and is a top advisor on investment treaties to the Association of South East Asian Nations (ASEAN). Paulsson is one of the most-appointed arbitrators in the field and has represented states and investors in disputes and advised states on treaty design.  

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Apply to be a Qualcomm Fellow 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 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!

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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

Causation Theory and Tort Law: An Update — Keith Hylton

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Post by Keith Hylton

Causation has generated a great deal of theoretical writing in tort law.  The most recent issue of the Journal of Tort Law (volume 7, Issue 1-2, Jan 2014, published online 10/31/2015) includes a three-article mini-symposium on the “economics of causation.”  The JTL symposium authors are me, Mark Grady, and Richard Wright.  The contributions from Grady and from me consist of new insights on the economic theory of causation, and Wright contributes a critique.

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Property Scholarship Citation Counts — Eric Claeys

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Post by Eric Claeys, George Mason University Earlier this year, Ted Sichelman blogged here about the most-cited real property articles published in the last 25 years.   Property scholar Stephen Clowney (Arkansas-Fayetteville) just conducted a more topical citation count, for the last 5 years of property scholarship.  He describes his methods in his posting (and … Read more

First Do No Harm: The DIRECTV v. Imburgia Decision — Greg Klass

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Post by Greg Klass

Yesterday the Supreme Court released its decision in DIRECTV v. Imburgia. DIRECTV won. If Amy Imburgia wants to sue DIRECTV under its 2007 contract, she will have to go to bilateral arbitration. Once again: no class action. I think this is the wrong outcome in this case, for reasons I articulated here, here and here, and for many of the reasons Justice Ginsburg gave in her dissent. That said, Breyer wrote a majority opinion that should make critics of the Court’s recent arbitration decisions happy.

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Interpretation and construction 3: Arthur Linton Corbin — Greg Klass

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Post by Greg Klass

In this third post on the interpretation-construction distinction, I introduce the hero of my story: Arthur Linton Corbin. Corbin builds on Francis Lieber’s and Samuel Williston’s work (which I have discussed here and here) to articulate more perspicacious conceptions of interpretation and construction. Whereas both Williston and Lieber viewed construction as supplementing interpretation, Corbin sees the two activities as complementary. He gets there by collapsing Williston’s three categories of rules into two.

Corbin’s 1951 treatise on contract law provides, as far as I know, the first clear articulation of the complementary conception. Corbin describes interpretation and construction as interlocking activities, both necessary to determine what the law requires. It is worth quoting the relevant passage in full:

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Interpretation and Construction 2: Samuel Williston — Greg Klass

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Post by Greg Klass

In my last post on the interpretation-construction distinction I described Francis Lieber’s supplemental view of construction, which can be found in his 1839 book, Legal and Political Hermeneutics. Lieber’s view is characterized by two claims. First, construction is supplemental: it steps in only when interpretation runs out. Second, the activity of construction is for the most part continuous with that of interpretation. “Construction is the building up with given elements, not the forcing of extraneous matter into a text.” (144) That said, Lieber also recognizes that sometimes construction departs from the spirit of the text, such as when the text yields to a superior legal principle.

It would be interesting to trace the influence of Lieber’s distinction between interpretation and construction throughout the next century of legal thought. Theophilus Parsons, for example, discusses the categories in his 1855 Law of Contract. James Bradley Thayer, in his 1898 Treatise on Evidence, expressly declines to adopt Lieber’s distinction, arguing that “neither common usage nor practical convenience in legal discussions support [it]”. (411 n.2) For my purposes, things get interesting with the 1920 first edition of Samuel Williston’s The Law of Contracts. In section 602, “Construction and interpretation,” Williston makes what I view as two improvements on Lieber’s theory.

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Interpretation and Construction 1: Francis Lieber — Greg Klass

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Post by Greg Klass

In several posts on DIRECTV v. Imburgia (here, here and here), I suggested that the interpretation-construction distinction illuminates some of the Supreme Court’s recent arbitration cases. The interpretation-construction distinction has recently been receiving more attention from con law theorists than from contract theorists. (See, e.g., here, here and here.) I’ve been working on a larger project on contract interpretation and construction, and want to use a few posts here to share some of what I’ve learned about the history and development of the distinction. What I have only scratches the surface. The history is a rich vein waiting to be mined. These posts describe only the outlines of the story as I currently understand it. In my telling, it has three protagonists: Francis Lieber, Samuel Williston and Arthur Linton Corbin.

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North American Workshop on Private Law Theory — Eric Claeys

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Post by Eric Claeys, George Mason University

Before we get too far into November, some friend of this blog should say a word about the third North American Workshop on Private Law Theory.  (“NAWPLT”). NAWPLT is an annual workshop organized by Henry Smith, John Goldberg, Andrew Gold, Steve Smith and Paul Miller (McGill), and Dennis Klimchuk (Western Ontario).  The NAWPLT organizers usually select eight or nine papers, diversified to cover each of the four major fields of private law: tort, contract, property, and restitution-plus-remedies.  The papers are also diversified to show off a wide range of methodologies—analytical methods, different traditions of normative philosophy, and on occasion conceptually-respectful economic analysis.   I always enjoy going because NAWPLT is refreshing for me.  As an American scholar, most of the private law scholarship I encounter at conferences tends to be reform-oriented or economic in focus.  At NAWPLT, I get reminded that, in some parts of the English-speaking scholarly community, analytical and philosophical methods are taken seriously and applied well to private law.  

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Is a Covenant-Not-To-Sue A License? — Christopher Newman

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Post by Christopher Newman, George Mason University.

Thanks to Jorge for his thought-provoking post.  It’s a thrill to have smart people find your work worth picking up and using for something.  Here are a few responsive thoughts of my own.

Because the term “license” encompasses a variety of interests comprising differing sets of jural relations, I think it’s important to specify what exactly is at stake in any given context when we ask “does a CNS amount to a license”?   As Jorge notes, the actual posture of Meso makes it a bad vehicle for this (nevertheless important and interesting) question, because the argument there really has nothing to do with identifying the substantive content of the property interest (if any) that accrues to the obligee of a CNS.   Meso is trying to obtain standing to enforce use restrictions that are purely contractual; bizarrely, they are in the position of arguing the equivalence of contract and property not to draw implications that sound in property, but simply to make a round trip back into contract.

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When is a Covenant just a Covenant? Of Meso, Newman and Transactions with Patents – Jorge Contreras

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Post by guest blogger Jorge Contreras, University of Utah College of Law.

A petition for certiorari was recently filed with the Supreme Court in Meso Scale Diagnostics LLC v. Roche Diagnostics GmbH (Del. 2015). In it, Petitioner poses the following question: “Whether a covenant, promise, or agreement not to sue for the infringement of a federal patent is a license of that patent as a matter of federal law.”

Though phrased simply, the question is an important one for reasons that extend well beyond the immediate dispute between the parties (which itself is too complex to describe here). Among other things, its answer has serious implications for the doctrine of patent exhaustion and the treatment of industry-wide commitments to limit the enforceability of patents in contexts such as standard-setting (commitments I have elsewhere termed “patent pledges”).

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There Is No General Tort Law — Sandra Sperino

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

In the discrimination context, the Supreme Court has declared that when Congress creates a federal tort it adopts the background of general tort law.  One reason that it is difficult to apply traditional tort law to discrimination cases is that there is no such thing as “general” tort law.  Tort law may use similar words in different torts, but these words often have different meanings, depending on the tort to which they are attached.  Many tort doctrines differ depending on the underlying pocket of obligation being considered.

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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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The History Problem –Sandra Sperino

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

The history of the discrimination statutes also presents a problem for interpreting them through the lens of tort law.  As mentioned in the last post, the Supreme Court has created different ways of thinking about discrimination claims.  Courts often categorize discrimination cases as falling into one of several different frameworks:  (1) individual, intentional discrimination claims; (2) pattern or practice claims; (3) harassment; and (4) disparate impact.

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Legal Remedies and Laches in a Statutory Regime: The Federal Circuit Distinguishes Patent from Copyright — John Golden

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Post by John M. Golden

What place do distinctions between law and equity have in modern law?  In the United States, answering this question can be complicated by not only a twentieth-century merger of law and equity under the Federal Rules of Civil Procedure, but also the frequent embedding of common-law principles within a substantive statutory regime.  The subject has attracted scholarly attention.  A forthcoming article by Sam Bray of the UCLA School of Law argues that the U.S. Supreme Court has properly emphasized distinctions between legal and equitable remedies in modern U.S. law.

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Title VII Does Not Look Like 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.

There are several reasons why it is hard to use tort law to define discrimination concepts.  The first reason is a textual one.  Any judge who espouses a strongly textual philosophy should have a hard time claiming that tort law specifically defines terms in Title VII.  Why?  Title VII is not structured like a typical common law tort.  More importantly, Title VII does not use the language of common law torts.

Most torts are structured in a particular way.  They have a common set of elements that define the primary contours of the cause of action.  For example, negligence is typically defined with four elements: breach of a duty causing injury. 

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The Supreme Court vs. Contract Law — Greg Klass

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Post by Greg Klass

My last two posts on DIRECTV v. Imburgia [post one, post two] were on relevant rules of construction: (1) the FAA presumption in favor of arbitration and (2) the common law tradition of reading against the drafter. But those rules should come into play only if the Supreme Court agrees with the California Court of Appeal that the phrase “the laws of your state” is, as it appears in the contract, ambiguous. At oral argument several justices explored an alternative holding: finding that “the laws of your state” had only one contractual meaning, and that the California Court of Appeal’s conclusion that it was ambiguous was so unreasonable as to be (presumptively?) hostile to arbitration. This post discusses what it would take to reach such a conclusion, and a few of the weirder things the Justices said at oral argument.

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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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DIRECTV v. Imburgia and Interpretation vs. Construction — Greg Klass

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Post by Greg Klass

I don’t know whether anyone else has noticed, but many of the Supreme Court’s recent arbitration cases raise the distinction between interpretation and construction. I do not think that the Court, which is not especially strong on contract doctrine, has noticed. But it’s lurking in the background. The distinction is especially relevant to understanding what is going on in DIRECTV v. Imburgia, which I blogged about last week.

If you’re not familiar with the interpretation-construction distinction, here’s Corbin’s summary, from the first edition of his treatise:

By “interpretation of language” we determine what ideas that language induces in other persons. By “construction of the contract,” as the term will be used here, we determine its legal operation—its effect upon the action of courts and administrative officials. If we make this distinction, then the construction of a contract starts with the interpretation of its language but does not end with it; while the process of interpretation stops wholly short of a determination of the legal relations of the parties.

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The Supreme Court, Discrimination and Torts — Sandra Sperino

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

Three fairly recent Supreme Court cases illustrate a change in the way that tort law is invoked in discrimination cases:  Gross v. FBL Fin. Servs., Inc., Staub v. Proctor Hosp., and University of Texas Southwestern Medical Center v. Nassar. In these three cases, the use of tort law commands a majority of the Court.  The use of tort law is also tied to textual claims, where certain words or concepts in discrimination law are directly interpreted through the lens of tort law.

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SCOTUS, Arbitration and Contra Proferentem — Greg Klass

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Post by Greg Klass

The Supreme Court heard oral argument yesterday (October 6th) in DIRECTV v. Imburgia (full transcript here). The case involves the meaning of “the law of your state” in an arbitration clause. DIRECTV argues that it means “the law of your state as limited by preempting federal law,” whereas the plaintiffs argue that it means “the law of your state without regard to any preempting federal law.” Because the phrase does not appear in a choice of law clause, the plaintiff’s have a decent argument for their reading—or that the words read in light of the contract as a whole are at least ambiguous. The reasons are complicated, but if the phrase means what DIRECTV says, then the arbitration clause kicks in and the plaintiffs lose their class action. If it means what the plaintiffs say, their class action remains in state court.

DIRECTV has argued that if the words “the law of your state” are ambiguous, the presumption in favor of arbitration means that they win. That would be a very weird result.

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What Does It Mean for Something to Be 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.

Whenever I say Title VII is not a tort, I get quite a bit of pushback about this claim.  It makes sense to start this post by explaining what I mean.

There is not one fixed definition of what a tort is.  Tort law can be defined as being “about the wrongs that a private litigant must establish to entitle her to a court’s assistance in obtaining a remedy and the remedies that will be made available to her.” John C.P. Goldberg & Benjamin C. Zipursky, Torts as Wrongs, 88 Tex. L. Rev. 917, 919 (2010). Another common definition of a tort is a “civil wrong, other than breach of contract, for which the court will provide a remedy.” W. Page Keeton, et al. Prosser and Keeton on The Law of Torts 1, 2 (5th ed. 1984).

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New Contributions to the Law of Property by Henry Smith: Realism, Numerus Clausus, and Custom– Yonathan Arbel

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Post by Yonathan Arbel

Professor Henry Smith has recently published two new engaging and interesting papers in the area of property law, both part of different symposia. For the symposia lists of papers, see here and here, and for the papers, see here and here (citations at the bottom of the post).

The first is part of a symposium where the main question was the enduring appeal of doctrinal analysis in private law, despite the “we-are-all-realists-now” dominant point of view. There are many great contributions there, and Smith takes this question to the area of property. He makes a simple but strong argument: the most basic of property doctrinal categories (or modules)—property as a law of things, the centrality of possessory rights, and property law as a partly formal system—stands tall in the face of the realist onslaught because, far from being transcendental nonsense, they serve important social functions, namely, they serve as information heuristics for complex social situations.  Smith surveys changes to property law since the times of the realists and shows that wherever changes occur, they were around the edges of property, and that the basic categories were left largely untouched despite the impression one might get from reading purely academic works.

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