Charles Fried, Contract as Promise, 2.0 — Yonathan Arbel

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Post by Yonathan Arbel

The second edition of Charles Fried’s foundational book ‘Contract as Promise’ is now out in print, and to celebrate the event, Harvard Law School held a special panel comprising of Charles Fried himself as well as other HLS professors.

The event itself was filmed and the YouTube link is appended at the bottom of this post. The panel discussion was great and Charles Fried untied many of the hard knots in the earlier edition of his book. His approach is neatly summarized in a new concluding chapter to his book, aptly titled ‘Contract as Promise in the Light of Subsequent Scholarship—Especially Law and Economics’, which clearly and fairly describes many of the critiques launched at his book, and presents his version of things.

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Conference Announcement — Contract, Status, and Fiduciary Law (McGill, 11/6-7)

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The McGill University Faculty of Law is pleased to announce the forthcoming conference – Contract, Status, and Fiduciary Law – to be held at McGill on 6-7 November 2015. The conference will feature papers by leading legal theorists exploring philosophical questions concerning relationships between contract law, moral and legal conceptions of status, and fiduciary law. … Read more

Private and Public Law Fundamentalisms — Daniel Markovitz

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Post by Daniel Markovitz

I’d like to begin by thanking John and Henry for inviting me to post here and for permitting me to join up a little late.

I intend to devote my posts to reportage as well as to opinion—among other things by advertising new scholarship in private law, especially by writers in the early stages of their careers, that I regard as excellent.  So please send manuscripts for me to relate.

Nevertheless, I’d like to devote this initial post to explaining why I am delighted that this blog — and other similar projects, including Yale’s newly inaugurated Center for the Study of Private Law — has been got going and why I’m glad to participate.

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What Commonwealth Jurists Can Learn from the New Private Law — Malcolm Lavoie

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Post by guest blogger, Malcolm Lavoie, University of Alberta Faculty of Law

It is impossible to explain the “new private law” to non-American jurists without first describing a little bit of history: the rise of legal realism in the 20th century, with its hostility to formal doctrine, and the subsequent emphasis the American legal academy has placed on looking beyond private law doctrine to understand what is really going on, in economic, political, or other terms. As alluded to by Henry Smith in a recent post, the dominance of “external” approaches to law in private law scholarship has been a uniquely American phenomenon. In civil law jurisdictions, as well as in the Commonwealth, private law scholarship has retained its focus on legal doctrine, though it is sometimes complemented by functionalist approaches of various stripes. If the central aim of the “new private law” is to encourage approaches to scholarship that “take law seriously”, one might rightly ask what it has to offer to jurists from, say, England and the Commonwealth, where scholars never really stopped taking law seriously.

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The New Private Law – the View from Germany — Henry Smith

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Post by Henry Smith

The Alster

This summer I spent a month visiting the Max Planck Institute for Foreign and International Private Law, in the group headed by Prof. Reinhard Zimmermann.  It was an enjoyable and productive visit, and it prompts me to raise a comparative issue on this blog.  In addition to the similarities and differences between common and civil law, which are sometimes overstated, there is a big difference between American and German private law scholarship, which is reflected in the law itself.  

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More Common Law in the Interpretation of Statutes: Akamai v. Limelight Part II – John Golden

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Post by John Golden

In June, I posted on a court opinion in Akamai Technologies, Inc. v. Limelight Networks, Inc. In this opinion, a panel of the U.S. Court of Appeals for the Federal Circuit invoked common law limits on joint tortfeasor liability to justify a narrow view of “divided infringement” as a form of direct infringement under § 271(a) of the U.S. Patent Act. Generally speaking, potential “divided infringement” situations are ones in which two or more actors split between themselves the performance of acts that, if performed by one, would constitute direct infringement. Realities of our networked world have intensified concerns with how to handle such situations—particularly for computer technologies for which it is relatively easy to distribute performance of process steps across different entities and locations.

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So What is New in the New Private Law? – Yotam Kaplan

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Post by Yotam Kaplan

Recent posts by Eric Claeys, Patrick Goold and Andrew Gold highlighted the centrality of analytical and conceptual jurisprudence to the NPL project. This focus on the more traditional aspects of legal argument portrays the NPL initiative as a reconstructive one, novel mainly for reinvigorating methodologies considered by many to be dated and unsound. The blog also sparked a lively conversation on the meaning of the term private law, a fact that in itself shows something new is about (as noted by the editors, any explicit focus on private law is novel, considering the current prevalence of private law skepticism). More generally, the ambitious title of the project (which generated some amusing expressions of ‘outrage’), expressly urges us to consider the potential for something new. And yet, scholars have generally demonstrated caution in making sweeping claims for the novelty of the NPL framework. This is probably a wise choice, as level-headed understatement usually is best. So, just to stir things up, I shall risk some overstatement.

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A School’s Duty of Care to its Students: Munn v. Hotchkiss School — Goldberg & Zipursky

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Post by John C. P. Goldberg & Benjamin C. Zipursky

Having participated in intensive debates among tort scholars over the place of duty in negligence law, we were especially interested to see the Second Circuit’s recent decision in Munn v. Hotchkiss School, No. 14–2410–cv., 2015 WL 4604288 (2nd Cir. Aug. 3, 2015).  (Thanks to the Volokh Conspiracy and How Appealing for bringing the case to our attention.)  

Facts and Outcome in the Federal Courts. 

Fifteen-year old Cara Munn was bitten by a tick while hiking on a forested mountain in China during a summer trip organized by Hotchkiss, her New England prep school. The tick transmitted encephalitis, which in turn caused Cara serious neurological damage, leaving her permanently unable to speak. Cara and her parents sued Hotchkiss in federal district court, arguing that the school was negligent under Connecticut law for failing to warn them that the trip might bring her into contact with disease-bearing insects, and in failing to take steps to ensure that Cara took protective measures such as using insect repellant, wearing proper clothes while walking in forested areas, and checking for ticks. A jury awarded them $10 million in economic damages and $31.5 million in noneconomic damages.

Hotchkiss appealed. A unanimous decision by a very able Second Circuit panel comprised of Judges Walker, Lynch, and Lohier neither affirmed nor reversed. Instead, in an opinion by Judge Walker, it certified two issues to the Supreme Court of Connecticut:  (1) whether public policy supports the imposition of a duty of care in such circumstances, and (2) whether the damages award was excessive.

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Tort Damages and Discrimination – Keith Hylton

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Post by Keith Hylton

Tony Sebok’s post on tort damages and discrimination presents a fascinating problem that I’ve often used as a basis for discussion in my torts classes.  If race (or some other feature likely to be discriminated against) is taken into account in an attempt to predict the future earnings of a tort victim, then damages awards will reflect the wider discrimination in society, in a sense making the tort plaintiff who falls into a discriminated-against category a victim twice, once at the moment of injury and again at the moment of compensation.

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Private Law Adjudication as an Arena of Struggle Between Principle and Policy – Noam Gur

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Post by Noam Gur

Ronald Dworkin famously argued that “[j]udicial decisions in civil cases, even in hard cases …, characteristically are and should be generated by principle not policy” (Ronald Dworkin, Taking Rights Seriously (Duckworth, 1977), p. 84. See also Ronald Dworkin, Law’s Empire (Harvard University Press, 1986), p. 244). Given the significant place policy considerations seem to occupy in civil law adjudication one might be tempted simply to dismiss Dworkin’s argument as too far removed from actual and desirable judicial decision-making. I believe, however, that there is something to be learned by critically engaging with his argument, which is what I will do (or begin to do) in this comment. The purview of my comment will be private law, and my examples will be drawn from tort law, the private law area I am most closely familiar with. I will suggest that while the principle/policy distinction does not mark a rigid boundary circumscribing what courts should do (or characteristically do), it plays a different and important role in shaping judicial decision-making.

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Can Tort Damages Discriminate? – Anthony Sebok

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Post by Anthony Sebok

On July 30, 2015, federal district court Judge Jack Weinstein refused to allow a jury to take the race of a plaintiff into account when calculating future earnings loss.  The case, G.M.M. v. Kimpson (discussed here: http://www.nytimes.com/2015/07/30/nyregion/award-in-lead-paint-lawsuit-cant-be-tied-to-ethnicity-judge-rules.html), was a lead paint poisoning case and the plaintiff was a four year-old boy.  The defense put on the stand a forensic economist intended to base his testimony, on part, statistical assumptions about the academic achievement and earnings potential of Hispanics, as a group.  Judge Weinstein flatly refused to allow any testimony based on ethnic group characteristics.

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Private Law in the Digital Age – Dan Kelly

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Post by Dan Kelly

Private law aficionados enjoy teaching, and discussing, many of the classic common law cases, Hawkins v. McGee (in contracts), Pierson v. Post (in property), and Vosburg v. Putney (in torts).  But, of course, private law is still relevant for, and able to provide insights into, new legal issues emerging in the twenty-first century.  One of these issues is fiduciary access to digital assets.

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Can We Contract For Fiduciary Loyalty? – Andrew Gold

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Post by Andrew Gold

Some of the more interesting puzzles in private law involve the boundaries between subfields.  Here is a recent example that implicates contract law and fiduciary law.  In 2013, the Delaware Supreme Court expressly recognized a contractually created fiduciary duty of good faith.  See Gerber v. Enterprise Products Holdings, LLC, 67 A.3d 400, 418 (Del. 2013).  From different perspectives, several theorists have recently argued that there are qualitative differences between contractual and fiduciary duties.  See Daniel Markovits, Sharing Ex Ante and Sharing Ex Post: The Non-Contractual Basis of Fiduciary Relations, in Philosophical Foundations of Fiduciary Law 209 (Gold & Miller, eds.) (2014); Stephen R. Galoob & Ethan J. Leib, Intentions, Compliance, and Fiduciary Obligations, 20 Legal Theory 106 (2014).  See also D. Gordon Smith, Contractually Adopted Fiduciary Duty, 2014 U. Ill. L. Rev. 1783, 1792 (arguing that a duty arising from the language of a contract should be considered a contractual duty).  Which view is right?

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The Hidden Equitable Langdell – Henry Smith

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langdellPost by Henry Smith

As Shyam mentioned in his post of May 8th, Christopher Columbus Langdell is widely taken to be the archformalist of the nineteenth century and Exhibit A of a deplorable “Classical Legal Thought” with its would-be deductive “science” of law. Recently, commentators such as Tony Sebok and Brian Tamanaha have argued that the formalist era was not as formalist is it appeared. Mostly the controversies over this revisionism swirl around realist-sounding pronouncements of courts and commentators of the common law in the late nineteenth and early twentieth centuries.

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Causation and Care in Tort Law — Keith Hylton

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Post by Keith Hylton

Causation is a topic that has generated a lot of interest from torts theorists.  Law and economics has been a bit late to the party, but at least they have brought some interesting findings with them.  The innovation offered by law and economics is a set of predictions about the incentive effects of causation rules.  This distinguishes law and economics from traditional moral reasoning because the law and economics approach makes statements about the actual effects of causation rules on tortious conduct.  To law and economics scholars, it is only after clear predictions can be made about incentive effects that we can start to make moral assessments of the law.  From the perspective of economics, it is of little use to offer a moral assessment of some legal doctrine without being able to say anything about its effects on behavior.  A law may seem morally ideal in its expression, but if its effect is to encourage socially destructive behavior, then the law must be considered a moral as well as an operational failure.

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Impairing State Contractual Commitments – How Sacred Should Contracts Be? — Aditi Bagchi

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Post by Aditi Bagchi

In early May, the Illinois Supreme Court unanimously struck down a 2013 state pension reform law.  That statute reduced various public pension benefits in an effort to reduce overwhelming debt in the public pension system.  The Court affirmed a lower court ruling that the bill violated the pension protection clause in the Illinois state constitution, which provides that “Membership in any pension or retirement system of the State, any unit of local government or school district, or any agency or instrumentality thereof, shall be an enforceable contractual relationship, the benefits of which shall not be diminished or impaired.”  The Court read the clause to prevent the legislature from any downward revision of a public employee’s pension benefits after the first day of her employment.

Illinois argued that the clause should be read to subject its public pensions to the same limitations as other contractual relationships, including modification or elimination by the state’s police power.  The Court rejected that argument, holding that, especially where the state is itself a party to the contract in question, the hurdle for a substantial impairment of contract is very high and had not been met in this case.

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Tort and the Taking or Assigning of Responsibility – John Golden

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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

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Post by Henry Smith

Kansas

 

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 2 part a — Yonathan Arbel

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Post by Yonathan A. Arbel

Continuing Janet Freilich‘s post covering the first day of the consortium, here follows my take on the second day, which was also very successful. I will divide my summary to two separate posts, so wait for updates… In this post I cover the contributions of John Goldberg, Stephen Smith, and Robert Caso and Guilia Dore.

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Private Law Consortium, Day 1

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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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How Do Conceptual Analysis and Normative Evaluation Relate to Each Other in Private Law? – Eric Claeys

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Post by Eric Claeys

Over the last month, Patrick Goold and Andrew Gold have both posted fine remarks about the role of analytic and conceptual philosophy in private law. Patrick suggested that the new private law project relies considerably on analytical methods associated with English analytical philosophy, and he anticipated several objections commonly made against analytical methods. Andrew provides helpful examples of recent scholarship applying analytical and/or conceptual methods to study private law.

I am not a producer of analytic methods, but I do consider myself a consumer of them. I am primarily interested in natural law- and rights-based normative theories of property, but I have written some on the analytical meaning of “property,” and the conceptual interplay between “property,” “infringement” and remedies in IP. In this entry, I’d like to warn other potential consumers of analytical method away from a few confusions I’ve encountered in trying to educate myself about analytical methods.

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Conference Announcement: Private Law in the 21st Century, Brisbane Australia

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Readers of the blog working on a variety of private law issues might find interest in the following conference, to be held at Brisbane, Australia on December, 14-15th, 2015:

The Australian Centre for Private Law and the TC Beirne School of Law at The University of Queensland, is proud to host the conference Private Law in the 21st Century to be held in Brisbane on 14-15 December 2015.

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Are There Too Many Patents to Search? A Response — Janet Freilich

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Post by Janet Freilich

Ted Sichelman has written a response to my earlier post on whether there are too many patents to search. He argues that the problem of patent searching is smaller than I suggested. He includes an excellent critique of Christina Mulligan and Timothy Lee’s article on patent search costs and provides some much needed numbers on the magnitude of search time and costs. I agree with him on many points, but I stand by my conclusion that clearance searches are very difficult, if not impossible.

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Are There Too Many Patents to Search? A Response — Ted Sichelman

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Post by Ted Sichelman

Updated July 3, 2015

In a recent post on this blog, Janet Freilich asserts that “it is exceedingly difficult (if not impossible) to know if one is infringing a patent.” Freilich further contends that “larger numbers of patents exacerbate this problem,” and approvingly quotes Christina Mulligan and Timothy Lee’s claim that “In software, for example, patent clearance by all firms would require many times more hours of legal research than all patent lawyers in the United States can bill in a year.”

These views generally reflect the academic zeitgeist regarding “search costs” in patent law. However, they do not accord with my own experience. In this regard, I have conducted many hours of patent searches—first, when I founded and ran a venture-backed software company for five years, for which I regularly reviewed patents of competitors; and second, as a practicing attorney, which included reading thousands of patents in many different fields (from software to electronics to medical devices) for “freedom to operate” and prior art purposes.

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