Ted Sichelman

Hohfeld Returns to the Supreme Court — Ted Sichelman

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Post by Ted Sichelman After more than a 25-year hiatus, Wesley Hohfeld—one of the preeminent private law theorists of the 20th century—has been cited by Justice Thomas in dissent earlier this week in Heffernan v. City of Paterson (thanks to Shyam Balganesh for the heads up), a case involving the alleged deprivation of free speech … Read more

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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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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A Hohfeldian Take on the Public-Private Law Divide — Ted Sichelman

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Post by Ted Sichelman

One aim of New Private Law is to reinvigorate the notion of “private law” in the face of realist and critical legal studies (CLS) critiques of the proverbial “public-private” law distinction.

These critiques center on three claims. First, the State often regulates in areas thought to be within the realm of private law, such as real property and contracts. Second, the State is necessary to enforce private economic relationships, such as those governing real property and contracts. Third, the State is a vague and ambiguous concept, and it is often difficult to characterize what does and doesn’t fall within its scope. In this regard, some contend that many private actors wield “power” in ways similar to those of the State.

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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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