The New Private Law—Harvard Law Review Symposium — Dan Kelly

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Post by Dan Kelly

I am grateful to John and Henry for inviting me to contribute to the New Private Law Blog. Several of the initial posts on this blog, as well as recent posts on other blogs, have raised the question of “What is private law?” (One might also ask: “What is new private law?”) These questions are interesting and important.

As background, I would direct interested readers to several articles from the 2011-2012 Harvard Law Review Symposium on The New Private Law, which were subsequently published in the May 2012 issue of the Harvard Law Review. The symposium includes an introduction by John Goldberg; articles by Shyam Balganesh on copyright; Henry Smith on property; Stephen A. Smith on remedies; and Ben Zipursky on torts; and responses by Abraham Drassinower and Richard Epstein (both responding to Shyam), Eric Claeys and Tom Merrill (both responding to Henry), Emily Sherwin (responding to Steve), and Keith Hylton and John Oberdiek (both responding to Ben).

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Langdell on the Structure of Intellectual Property — Shyam Balganesh

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Post by Shyam Balganesh

Christopher Columbus Langdell is best known as a Legal Formalist who sought to develop an autonomous and deductive approach to legal analysis. Some of his most prominent contributions were in trying to identify the structure of rights and wrongs. Hidden within his body of work is a short five-page paper entitled Patent Rights and Copy Rights (12 Harv. L. Rev. 553 (1899)) where he tries to understand the precise analytical structure of statutory patents and copyrights. Langdell makes a number of interesting points in the paper, but what I found most compelling was his effort to locate the patent and copyright systems (i.e., statutes) within the realm of private law, despite the obvious role of the state in generating and maintaining the system. Here are a few of his observations (p. 554):

Has an author, musical composer, artist, or inventor a property in his literary, musical, or artistic creation, or in his invention, regarded as an incorporeal thing? If he have, this will furnish him with another and effective means of preventing the use and enjoyment of his creation or invention by others without his consent. If such a property exist, it is not created by the State, but is deduced as a consequence of the creation or invention. If such a property does not exist otherwise, doubtless it might be created by the State; but it is believed that no State ever has created such a property.

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

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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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Waiver of Class Actions — Keith Hylton

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Post by Keith Hylton

Waiving or agreeing pre-dispute to arbitrate a potential legal claim has always been a controversial topic in tort law. It’s especially controversial in the class action setting, since the Supreme Court’s decision in AT& T v. Concepcion, 563 U.S. 321 (2011) (holding that the Federal Arbitration Act preempted California’s application of unconscionability doctrine as a bar to the enforcement of an agreement prohibiting class-wide arbitration). In a piece forthcoming in the Supreme Court Economic Review I examine the question whether class action waivers should be enforced. Here is the SSRN version.

To answer this question, it is helpful to start by asking whether society’s welfare can ever be enhanced by allowing pre-dispute litigation waivers. The answer is yes. Society benefits from the threat of litigation, because the threat induces potential tortfeasors to take care. But that benefit is not ever-increasing. In particular, there is a cost associated with it, the cost of litigation. If the value of the “deterrence benefit” is less than the cost of litigation, then the threat of litigation actually reduces society’s welfare (after netting out the litigation cost). A litigation waiver may be socially desirable in this case.

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

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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

Fodder for Private Law Mavens: The Federal Circuit, Laches, and Exhaustion — John Golden

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Post by John Golden

Private law mavens might have interest in two patent cases that the U.S. Court of Appeals for the Federal Circuit has taken en banc. In SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, No. 2013-1564 (Fed. Cir. Dec. 30, 2014) (en banc), the Federal Circuit will review precedent indicating that the defense of laches is available “to bar a claim for damages based on patent infringement occurring within [a] six-year damages limitation period” set by the U.S. Patent Act. In Lexmark International, Inc. v. Impression Products, Inc., Nos. 2014-1617, 2014-1619 (Fed. Cir. Apr. 14, 2015) (en banc), the Federal Circuit will review additional precedent involving the doctrine of patent exhaustion, a doctrine under which, in the Supreme Court’s words, “the initial authorized sale of a patented item terminates all patent rights to that item.” Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. 617, 625 (2008).

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Welcome!

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Post by John Goldberg and Henry Smith. Welcome to the New Private Law Blog! Our aim is to start a new and wide-ranging discussion of time-honored issues concerning the rights and duties of individuals and private entities as they relate to one another. Future blog posts will address topics in contracts, torts, property, intellectual property, … Read more

Most Cited Private Law Articles Published in the Last 25 Years

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Post by Ted Sichelman

Recently, I began a project to trace the influence of legal scholars from the late 19th century through the present using citation networks. Building off of this work, I’ve assembled a list of the most cited private law articles published over the last twenty-five years (see  below).

In determining whether an article fell into the “private law” category, I first performed a search in HeinOnline to retrieve all law journal articles published since 1990, ordered by citation count. Then, I reviewed the title and often the content of every highly cited article (more than 200 citations). I included in the most-cited list any article in the areas of torts, property, contracts, intellectual property, commercial law, wills & trusts, and remedies, as well as any article heavily drawing upon methods from those fields. (No other areas of private law had enough citations to justify inclusion.) I excluded articles in public law or hybrid fields, such as corporate law (unless the article focused on contract or commercial law), employment law, family law, securities law, cyberlaw, antitrust, and privacy. Of course, this process required some judgment, but no more than a few of the articles were close calls in my view (avoiding the thorny question of whether intellectual property is a hybrid field).

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