Post by Henry Smith

As a follow up to Patrick Goold’s post on the IP, Private Law, and the Supreme Court Conference, let me raise a couple of questions inspired by the first panel. Much of the discussion focused on how treating intellectual property as a kind of property does not mean assuming it is absolute or that all of IP is equally “property-like.” And yet what does it mean to think about a topic in terms of property?

In private law, a distinction is often drawn between two broad families of approaches. On the one hand are external, often functional, theories that explain and justify private law in terms of something else, whether economics, psychology, or philosophy. On the other side and less common in American law schools are internal or interpretivist theories that adopt the perspective of one inside the legal system and seek to make sense of that system from within – to render it coherent. Read More…

From Wednesday June 28- Saturday July 1 the Summer School “Contract Law and the Moral Limits of Markets” will take place at the Amsterdam Law School. Junior scholars and advanced students will have the opportunity to explore questions on moral limits of markets from a legal, contractual, standpoint together with Aditi Bagchi, Hanoch Dagan, Lyn Tjon Soei Len, and Martijn Hesselink. The summer school will also offer participants the occasion to present their own work and receive valuable feedback. Although the deadline for applications is fast approaching (extended to Monday, April 24), funding is still available to support travel and accommodation costs.

More information can be found here.

Post by Patrick Goold

On March 10, the Project on the Foundations of Private Law at Harvard Law School and the Intellectual Property Program at the George Washington University Law School hosted the Intellectual Property, Private Law, and the Supreme Court conference. This day-long conference brought scholars, practitioners, and policy makers together to discuss the Supreme Court’s use of private law concepts in IP cases. The conference was a time to reflect on how the court has used principles from property, torts, contracts, equity and remedies, in IP law, and to think about how the court should use these principles in the future. This short blog post reports some of the day’s major themes.

Opening remarks were delivered by Commissioner F. Scott Kieff (International Trade Commission, on leave from his faculty position at George Washington Law).  Drawing from the examples of three prior cases (MGM Studios, Inc. v. Grokster, Ltd., 545 U.S. 913 (2015); Limelight Networks, Inc. v. Akamai Technologies, 134 S.Ct. 2111 (2015); and ClearCorrect Operating, LLC, v International Trade Commission, 819 F.3d 1334 (2016)), he explored some benefits and risks presented when individual litigants focus their arguments on private law concepts, and how this differs from the “too much versus too little protection” debate that commonly dominates IP law discussions. Read More…

Posted by: lscholz | 1st Feb, 2017

Journal of Tort Law Invites Submissions

The Journal of Tort Law is the only peer-reviewed journal devoted to tort law in the United States. It offers several advantages to those submitting scholarship. First, your work will be reviewed by peers. This is particularly important for more technical pieces. Second, there is no submission cycle. Articles can be submitted at any time. Third, the Journal routinely publishes high-quality articles. The two issues to be published in 2017 are great examples. Volume 10, Issue 1 will publish articles from the Torts and Compensation Systems Section’s panel at the AALS Annual Meeting. Covering “Gun Regulation and Private Law,” authors include Leslie Kendrick (UVa), Adam Scales (Rutgers), and Steve Sugarman (Berkeley). The issue will also contain an article by Greg Keating (USC). Volume 10, Issue 2 will feature a symposium on the Restatement of the Law Third: Intentional Torts to Persons. Reporters Ken Simons (UC Irvine) and Jonathan Cardi (Wake Forest) will respond to commentary from Anita Bernstein (Brooklyn), Ellie Bublick (Arizona), Martha Chamallas (Ohio State), Mark Geistfeld (NYU), Mike Green & Bill Powers (Wake Forest/Texas), Nancy Moore (Boston University), Tony Sebok (Cardozo), Cathy Sharkey (NYU), Steve Sugarman (Berkeley), Richard Wright (Chicago-Kent), and Ben Zipursky (Fordham).

Submission information is available here. The Journal has adopted a policy that authors will have either a decision or an update within 45 days of submission.

Posted by: lscholz | 18th Jan, 2017

Markets, Ethics, and the Law Postdoctoral Fellowships

The Edmond J. Safra Center for Ethics at Tel Aviv University is accepting applications for its 2017-18 postdoctoral fellowship program. The Center offers grants to outstanding researchers who study the ethical, moral and political aspects of markets, both local and global from all disciplines and fields, including economics, social sciences, business, the humanities and the law. More details here.

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Qualcomm Fellowship in Private Law and Intellectual Property.

The Qualcomm Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in intellectual property and its connection to one or more of property, contracts, torts, commercial law, unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events, and blogging.

More information and application details can be found here.

Posted by: lscholz | 10th Jan, 2017

Apply to be a Private Law Fellow at the Project

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for the Postdoctoral Fellowship in Private Law.

The Fellowship is a two-year, residential postdoctoral program specifically designed to identify, cultivate, and promote promising scholars early in their careers with a primary interest in private law. Private law embraces traditional common law subjects (property, contracts, and torts), as well as adjacent statutory areas such as intellectual property and commercial law. It also includes resurgent areas, such as unjust enrichment, restitution, equity, and remedies. Fellows have been selected from among recent graduates, young academics, and mid-career practitioners who are committed to pursuing publishable research likely to make a significant contribution to private law scholarship.

Fellows devote their full time to scholarly activities in furtherance of their individual research agendas. In addition, fellows contribute to the intellectual life of the Project and the Harvard Law School community through mentoring students, presenting their research in and attending faculty workshops and seminars, helping to organize and participating in Center events and projects, and blogging.

More information and application details can be found here.

Post by Patrick Goold

The Project on the Foundations of Private Law at Harvard Law School and the Intellectual Property Law Program at The George Washington University Law School invite you to attend Intellectual Property, Private Law, and the Supreme Court, a day-long conference in Washington, DC, on March 10.

In the last decade, the Supreme Court of the United States has made it clear that private law, both substantive and remedial, is relevant to intellectual property. The Justices have repeatedly observed that IP law is not disconnected from the larger legal system, and has increasingly applied the principles of the laws of property, tort, equity, and remedies in IP cases. In cases that include ABC v. Aereo, Akamai v. Limelight, Commil v. Cisco, eBay v. MercExchange, Halo v. Pulse, and Petrella v. MGM, the Court’s opinions have relied on private law doctrines to help address contemporary IP problems. Organized by the Project on the Foundations of Private Law at Harvard Law School and The George Washington University Law School, the conference brings together scholars, policymakers, and practitioners to analyze how the Supreme Court is using private law in its IP decisions, and to anticipate what the future holds for the role of private law in the development of IP jurisprudence. Sponsorship is provided by Qualcomm Inc. and Intel Corp.

Click here to RSVP.

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Post by Patrick Goold

Sir Edward Coke’s Institutes of the Lawes of England, first published in 1628, rarely influences the direction of modern U.S. patent law. But that might be about to change. This December, the Supreme Court of the United States granted certiorari in the case of Impression Products, Inc. v. Lexmark International, Inc., Supreme Court Docket No. 15-1189, concerning the scope of the patent exhaustion doctrine. The case will interest readers of this blog because it highlights the conceptual and doctrinal relationship between IP exhaustion and common law rules regarding restraints on alienation.

The case involves the ongoing battle over refurbished printer toner cartridges. Lexmark International makes printer toner cartridges, over which it owns a number of patents. These cartridges fall into two types: “Regular Cartridges” are sold at full price; while “Return Program Cartridges” are sold at a discount but come with a “single-use/no-resale” restriction, meaning the buyer may neither reuse nor resell the cartridge after the toner has run out. Lexmark sells these cartridges both domestically in the U.S. and abroad. In 2014, Lexmark sued Impression Products for patent infringement. Impression Products had previously: (1) bought domestically-sold Return Program Cartridges, modified by third parties to allow refilling, and resold them in the U.S.; and (2) imported and resold both Regular and Return Program Cartridges from foreign markets. Lexmark maintained both of these actions infringed their U.S. patent rights under § 271 of the Patent Act. Impression argued that both of these acts were non-infringing due to the Patent Exhaustion doctrine, which holds that “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). John Golden has discussed the case in a prior New Private Law Blog post.

Read More…

Post by Patrick Goold

Caveat emptor, or buyer beware, was the traditional principle of Anglo-American contract law. Today, however, many common law jurisdictions require the seller to disclose material information to the buyer prior to sale. Nevertheless, the duty to disclose is still subject to debate. Should the law obligate the seller to disclose pertinent information (a mandatory disclosure rule)? Or should disclosure be at the discretion of the seller (a voluntary disclosure rule)? In Disclosure Rules in Contract Law, Oren Bar-Gill and Ariel Porat study how mandatory and voluntary disclosure rules affect sellers’ incentives to invest in pre-sale investigation of goods. Speaking at the final installment of this year’s Private Law Workshop, Oren Bar-Gill explained their conclusion: that mandatory disclosure rules typically, but not always, provide sellers with efficient incentives to acquire socially valuable information regarding the asset.  

Imagine the following example. Having lived in a house for 10 years, the owner suspects there is water beneath the house that might damage its foundations. Before selling the property, the owner could hire a surveyor to investigate whether underground water exists. Whether hiring a surveyor is efficient depends on the value of the information investigation reveals relative to the cost of acquiring it, i.e. hiring the surveyor.

In 1994, Steven Shavell studied how mandatory (MD) and voluntary disclosure (VD) rules affected the incentives of sellers to undertake such investigations. Shavell found that MD rules create efficient incentives, while VD rules do not. If the owner knows that any information the investigation reveals must be disclosed, then he will only invest in the investigation if the expected increase in value to the asset outweighs the cost of the investigation. Conversely, voluntary disclosure rules cause owners to invest too heavily in information-acquisition, on the grounds that any favorable information can be used to demand a higher price, while unfavorable information is simply ignored.

Read More…

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