Dan Kelly

Property and “The Right to Include” — Dan Kelly

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Post by Dan Kelly

Donald Kochan (Chapman) recently published an essay, “Property as a Vehicle of Inclusion To Promote Human Sociability,” in JOTWELL—The Journal of Things We Like (Lots).  The essay reviews my article on The Right to Include.  In that article, I attempt to highlight the fact that private property allows owners not only to exclude but also to include others.  Inclusion may occur informally, contractually, or through a range of property forms, from easements and leases to common-interest communities and trusts.  While there are benefits from including others in property (think of Airbnb), there are also costs and potential pitfalls of inclusion—coordination difficulties, strategic behavior, and conflicts over use.  For this reason, I argue, the law enables owners to select from a variety of forms that provide different types of anti-opportunism devices, including mandatory rules, fiduciary duties, and supracompensatory remedies.  Ultimately, I contend that “ownership can be inclusive, rather than exclusive; it can facilitate cooperation, not just result in conflict; and it frequently promotes human sociability, not atomistic individualism.”

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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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ISNIE 2015 — Dan Kelly

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Post by Dan Kelly

The International Society for New Institutional Economics (ISNIE), soon to be renamed The Society for Institutional and Organizational Economics (SIOE), is hosting its 19th Annual Conference this weekend, June 18-20, at Harvard Law School.  The conference website includes details on this year’s program and papers.

The conference is sponsored by Harvard Law School through the Project on the Foundations of Private Law.  In addition to keynotes by Martin Nowak (Harvard) on “The Evolution of Cooperation” and Michael Whinston (MIT) on “Property Rights and the Efficiency of Bargaining,” the program includes a number of panels that intersect with private law topics, including agency and fiduciary law, contracts, intellectual property, and property rights.     

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“Taking Turns”: Common Solution, Unusual Remedy — Dan Kelly

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Post by Dan Kelly

To facilitate coordination and mitigate conflicts, a common solution in everyday life is the idea of taking turns.  If two siblings or children are fighting over a toy (say, a ball or doll), a parent or teacher may suggest taking turns.  If drivers are exiting a crowded parking lot after work, church, or a ballgame, the implicit norm is to take turns.  Yet, this strategy of taking turns has received relatively little attention in law and the social sciences.

In “Taking Turns” (forthcoming Florida State University Law Review), Ronen Perry (Haifa) and Tal Z. Zarsky (Haifa) examine turn taking from both a fairness and efficiency perspective.  Their lead example is from a trusts and estates case, In re McDowell, 345 N.Y.S. 2d 828 (Sur. Ct. N.Y. 1973):

Two siblings jointly inherit their late father’s rocking chair. The chair has principally sentimental and no real economic value; it cannot be physically divided between them, and selling it to distribute the proceeds will compensate neither for the sentimental loss. What, then, should become of the disputed property? In a self-confessed “strange” decision in the McDowell case, the Surrogate’s Court of New York ordered that the two siblings take possession of the chair alternately for six-month periods; and that when one passed away, the other would obtain exclusive possession.

Are there other examples of turn taking in law and legal institutions, particularly private law?  Given the prevalence of turn taking as an informal solution to coordination problems, why does the formal law not embrace taking turns more frequently when it comes to remedies? 

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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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