Henry Smith

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

Communal Property and Two Legal Cultures — Henry Smith

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Post by Henry Smith

Last week I took part in some events at the Intensive Doctoral Week at Sciences Po in Paris.  This is a conference for Ph.D. students in law from all over France, organized by Mikhail Xifaras of Sciences Po Law School, and it features panels devoted to a wide range of topics.  One of two on property focused on the future of communal property, with panelists Bob Ellickson, Séverine  Dusollier, Maria Rosaria Marella, and myself (with my name spelled “Henri” no less!).  The notion of common property has a long pedigree and is very important in the work of legal scholars such as Bob Ellickson and Carol Rose and economists such as Gary Libecap and Elinor Ostrom.  The Europeans have a renewed interest in communal property for two reasons. First, they believe that it is a way of breaking down the supposedly hyper-individualist notion of property enshrined in the civil code.  Second, communal property can be used to solve cutting-edge problems like providing new forms of low-income housing. 

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Is Equitable Contract Law a Pipe Dream? — Henry Smith

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Post by Henry Smith

At last month’s American Law and Economics Annual Meeting, I attended a very interesting session on Commercial Law and Contracts, at which the first two papers were in tension with each, as were their authors – in a polite way!  The first was “The Common Law of Contract and the Default Rule Project,” by Alan Schwartz and Bob Scott.  They argue that the program over the last century by academics, codifiers, and Restaters (“drafters”) to supply transcontextual defaults rules that apply in a wide variety of contracts was doomed to fail. Common law contract supplied a limited number of defaults that do have this feature, such as expectations damages for breach of contract.  Going beyond these traditional rules faced the drafters with a dilemma.  They did not have knowledge enough to supply defaults that would make sense for particular industries.  So they chose the transcontextual route, but to create additional defaults here required them to fudge the content, opting for fuzzy or underspecified standards based on custom and reasonableness, and commercial parties have not been receptive to these efforts, often opting out of them. 

Source: http://firstyearcontracts.blogspot.com/2010/03/estate-of-mr-george-edward-kent-man-who.html

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Smith on Newman on Bailments — Henry Smith

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Post by Henry Smith

Chris Newman has a new draft paper on SSRN on bailments (“Bailment and the Property/Contract Interface”).  The paper is provocative (yes, that is possible in a paper on bailments!) and deeply insightful.  Newman argues that much of the confusion about bailment contracts, and especially strict liability for deviation from such contracts, stems from a lack of understanding of which baseline is operative in various cases.  The article provides compelling reasons to think that the property baseline governs more than people usually think – and should do so. Like a license (a subject of Newman’s previous work), a bailment is a legal relation that can be created or shaped by contract, but it should not be identified with the contract. Indeed, in involuntary bailments (most prominently with finders), there is no contract at all.  But even where there is one, the bailment itself is just a giving of possession without a transfer of ownership.  The bailee has a license to do certain things with the thing, and if the bailee exceeds the scope of that license, then the bailee violates the in rem rights of the owner, just as other converters and trespassers might.

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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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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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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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The Bundle of Sticks: Is There Anything It Can’t Do? — Henry E. Smith

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Post by Henry E. Smith

Last week, the Supreme Court decided Henderson v. United States.  Justice Kagan’s opinion for a unanimous court holds that a court can use its equitable powers to order the government to transfer a convicted felon’s firearms to a third party as long as the court is satisfied that the recipient will not give the felon control over the guns.  (Under 18 U.S.C. § 922(g), it is unlawful for a felon to possess a firearm.)  As reflected in the 9-0 result and the skepticism of the Justices about the government’s arguments for why a flat-out refusal to allow the felon any choice of transferee, the opinion might be regarded as an unremarkable bit of criminal law or statutory construction.

But then there’s this:

Section 922(g) proscribes possession alone, but covers possession in every form. By its terms, §922(g) does not prohibit a felon from owning firearms. Rather, it interferes with a single incident of ownership—one of the proverbial sticks in the bundle of property rights—by preventing the felon from knowingly possessing his (or another person’s) guns. But that stick is a thick one, encompassing what the criminal law recognizes as “actual” and “constructive” possession alike.

Slip Op. at 3-4 (citations omitted).  After gesturing to the bundle of sticks, Justice Kagan goes on to note that the right to sell or otherwise dispose of an item is a distinct incident of ownership and concludes that one can exercise the right to alienate without either actual or constructive possession.

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Law and the Big Oops — Henry E. Smith

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Post by Henry Smith

vossMost of the time when we think building encroachments, we’re talking about an inch here or there. But what happens when someone builds an expensive house on the wrong lot? That could never happen, could it?

Oh yes, it can and it does. In one recent example, Mark and Brenda Voss mistakenly had their vacation home (pictured above) built at a construction value of $680,000 on the lot next to the one they actually own. Mr. Voss owns a real estate company (!), but the mistake and the ultimately responsibility appear to be the builder’s. Bargaining is inevitably going to be tough in what amounts to the ultimate bilateral monopoly situation. (Merrill and I have a case in our casebook in which the frustrated mistaken improver demolishes the house – and winds up having to pay for it!)

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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