Post by Greg Klass

I hope those interested in contract law are aware of the ALI’s project for a Restatement of the Law of Consumer Contracts. It is a major undertaking, both in its attempt to synthesize existing law in this area and as a statement about how common law courts can best address business-consumer transactions.

There is a lot to say on the substance of current draft (which the ALI doesn’t seem to have on its website). The Reporters’ core move is give up on robust ex ante consumer assent—shrinkwrap and browsewrap are both ok, as are notice-only business-side modifications—and to protect consumers through stronger ex post judicial review for substantive unconscionability. I’m not sure this is the all-things-considered best way to go. Mandatory terms crafted by regulators might provide businesses more certainty and consumers more protection. The Reporters’ approach might be the best common law courts can do. But I worry that enshrining it in a Restatement could deter regulatory innovation. That said, I am a big fan of draft sections 6, 7 and 8, which together would limit businesses’ ability to integrate standard terms. The logic of the parol evidence rule falls apart when we know one side hasn’t read the writing in question. Read More…

Save the Date

The Yale Law School Center for Private Law will host a Private Equity Conference on November 17, 2017. The conference will bring leading theorists from law, economics, finance, and sociology into dialogue with people with experience at the highest levels of private equity, including from law practice, financial firms, and institutional investors. 

Oliver Hart, winner of the 2016 Sveriges Riksbank Prize in Economic Sciences in Memory of Alfred Nobel, will give the keynote address.

Other speakers include:

Jon Ballis, Kirkland & Ellis

Rosemary Batt, Cornell University, ILR School

Neil Fligstein, UC Berkeley Sociology Department

Stephen Fraidin, Pershing Square Capital Management

Will Gaybrick, Stripe

Adam Goldstein, Princeton University Department of Sociology

Victoria Ivashina, Harvard Business School

Andrew Metrick, Yale School of Management

Meridee Moore, Watershed Asset Management

John Morley, Yale Law School

Alan Schwartz, Yale Law School

David Swensen, Chief Investment Officer, Yale University

 

Location: Yale Law School, 127 Wall St., New Haven, CT

Time: Approximately 9:45 a.m.-4:00 p.m.

Cost: There is no cost associated with this event, though pre-registration is required. Registration information will be available soon at this link.

CLE: New York CLE Credit will be available.

The conference is sponsored by the Kirkland & Ellis Fund for the Study of Private Law.

Post by Eric Claeys, George Mason University, Antonin Scalia Law School

In a recent post, Henry Smith made some perceptive observations about the state of contemporary intellectual property scholarship.  Henry was commenting on a panel at a recent conference, in which panelists stressed that “treating intellectual property as a kind of property does not mean assuming it is absolute.”  And he noted that what he called “external” accounts of IP are much better-represented than what he called “internal” or “interpretivist” approaches to IP. 

I have offered a few thoughts on Henry’s post already, and I hope to offer a few other thoughts in due time.  I am extremely interested in Henry’s question because I have been working on an article focusing on those same questions.  As luck would have it, I just received news that the article was accepted for publication in the journal Jurisprudence.  I’d like to take a minute to flag the article (still in draft form) and summarize its arguments.

The article is titled “Intellectual Property and Practical Reason.”  The article’s main intention is to show how general principles of a certain family of normative theories supply basic guidance for the field of IP. The theory-family covers theories loosely associated with natural law and rights-based forms of eudaemonist or perfectionist political theory.  (In what follows, I’ll describe these approaches as “rights-based perfectionist” approaches.)  In IP, Wendy Gordon, Ken Himma, Adam Moore, Rob Merges, Adam Mossoff’s, and my own work on Lockean labor theory all fall in this family.  But so do Nussbaum-Sen “capabilities” theories, and (at least on some interpretations) Rawlsian fairness theories. Read More…

Post by Patrick Goold

I recently had the pleasure of attending the “Future of Law & Economics and the Legacy of Guido Calabresi” conference held at Boston University School of Law. It examined the methodological, institutional, and conceptual issues raised by Judge Calabresi’s new book, The Future of Law and Economics. After two fun days, packed with delightful anecdotes about Calabresi and the early days of the Law and Economics movement, the question I found myself asking was: How do the ideas in this new book relate to the New Private Law project? My sense, which I will explain in this short post, is that there is a strong synergy between that project and Calabresi’s vision for Law and Economics.

At the core of Calabresi’s book is a distinction between “Economic Analysis of Law” (EAL) and “Law and Economics” (L&E). EAL uses economic theory to “analyze the legal world.”  EAL scholars explain and justify legal reality through the prism of efficiency. Where that reality does not fit economic theory, the EAL scholar proclaims the law to be “irrational” and in need of reform. The classical precursor to this approach is that of Jeremy Bentham, who tested moral beliefs against a theory of utilitarianism, and dismissed what did not fit the theory as vague generalities and “nonsense upon stilts.” The prominence of EAL scholarship today is due, in part, to the influential writings of Richard Posner.
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Post by John Golden

On June 12, the United States Supreme Court granted certiorari with respect to the first question presented in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, No. 16-712 (S. Ct. 2017):

Whether inter partes review—an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents—violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury.

This grant gives new prominence to a question flagged in my post of May 30, the question of whether patents involve public or private rights for purposes of U.S. administrative law.  In this context, the question is refracted through a definition of “public rights” that the Supreme Court has developed to delimit the scope of Article III courts’ exclusive powers.  A determination that patent rights are more properly viewed as “private” than “public” could lead to a conclusion that inter partes review, as well as other new mechanisms for the administrative review of patent validity, are unconstitutional.  Read More…

Post by John Golden

Intersections between statutory law and traditional private law principles loom large in two recent patent law decisions of the United States Supreme Court.  For this, we can partly thank the United States Court of Appeals for the Federal Circuit.  As discussed in my first NPL blog post, the Federal Circuit preceded the Supreme Court in taking the cases for en banc review.  The en banc circuit obligingly produced holdings that the Court could not resist overruling.

In the first case, SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC, 137 S. Ct. 954 (2017), the Supreme Court held that laches cannot block a claim for damages from patent infringement when that infringement has occurred within the statutorily allowed period of six years before the filing of the claim.  Seven of the eight Justices involved in deciding SCA Hygiene agreed that this outcome followed straightforwardly from the Court’s 2014 decision in Petrella v. Metro-Goldwyn-Mayer, Inc., 134 S. Ct. 1962 (2014), which addressed similar questions regarding laches, damages, and the Copyright Act’s three-year statute of limitations.  Writing for the Court with what appeared to be restrained exasperation, Justice Alito began his opinion by stating, “We return to a subject that we addressed in Petrella ….”  Alito’s opinion proceeded to emphasize that laches arose from equity and that the case before the Court involved “application of the defense to a claim for damages, a quintessential legal remedy.”  In the Court’s view, a statute of limitations such as the Patent Act’s six-year limitation on backward-looking damages “necessarily reflects a congressional decision that the timeliness of covered claims is better judged on the basis of a generally hard and fast rule rather than the sort of case-specific judicial determination that occurs when a laches defense is asserted.”  Application of a laches defense in the face of this congressional judgment “is beyond the Judiciary’s power.” Read More…

Post by Eric Claeys, George Mason University, Antonin Scalia Law School

In a recent post on this blog, Henry Smith asked some important questions about methodological commitments in American scholarship about intellectual property.  Henry distinguished between (on one hand) “external” and (on the other hand) “internal or interpretivist” frameworks for studying law.  He then noted that, in American IP scholarship, “scholars overwhelmingly adopt consequentialist and even utilitarian frameworks” in relation to patent law and repeat those same tendencies in copyright (though not to the same degree as in patent).  Henry’s post invited readers to consider why IP scholarship is so much more externally-oriented than other fields of scholarship on private law.

I completely agree with Henry’s general impressions about normative frameworks  in IP.  I also agree with his suggestion that IP scholars should reflect more upon why and how external accounts came to predominate in IP scholarship.  In this and a few subsequent posts, I’d like to offer a few thoughts.  In later posts, I want to suggest a different demarcation than Henry’s demarcation between external and internal-interpretivist approaches.  But my concern on that point is fairly specialized, removed from the big questions Henry is raising.  Before running off with the proverbial ball to one corner of the field, I hope in this post to offer some thoughts about the state of play in the middle of the field. Read More…

Post by John Golden

Are patent rights public or private rights?  Generally speaking, patents are privately held, and their enforcement is limited to civil suits brought by their private holders.  Hence, in some sense, the answer might seem obvious.  But for purposes of addressing issues of separation of powers and the right to a jury trial, the answer is not so straightforward.  For these purposes, the United States Supreme Court has made central a public-versus-private-rights distinction under which the key question is whether the rights at issue are “integrally related to particular government action” because “the claim at issue derives from a federal regulatory scheme, or … the resolution of the claim by an expert government agency is deemed essential to a limited regulatory objective within the agency’s authority.”  Stern v. Marshall, 564 U.S. 462, 491–92 (2011).  If the answer to this question is “yes,” the right in question is a “public right” whose application Congress may entrust to adjudication by an administrative body.  If, on the other hand, the claim is one of “private right,” a category typically understood to include suits traditionally brought at common law, the Court’s understanding of constitutional requirements of separation of powers means that authoritative trial-level adjudication may occur only in an Article III court, one in which the presiding judge or judges enjoy the protections of life tenure and salary protection mandated for the judicial branch by Article III of the United States Constitution.

Controversy rages over the extent to which patent rights—or, at least, challenges to patent rights’ validity—fall within the “public rights” exception to Article III adjudication.  The motive force for this controversy is the popularity of new procedures for post-issuance review of patent claims by administrative patent judges of the U.S. Patent and Trademark Office (PTO).  Starting in the early 1980s, Congress authorized the PTO to conduct post-issuance proceedings that could reconsider the validity of issued patent claims on either the PTO’s own initiative or that of a third party.  Through the America Invents Act of 2011, Congress revised and elaborated on PTO post-issuance proceedings.  One form of the revised set of proceedings, so-called “inter partes review,” has flourished since 2011: the PTO currently receives over 1,000 petitions for inter partes review each year.  In such a proceeding, the patent holder and a patent challenger contest the validity of issued patent claims before administrative patent judges of the PTO’s Patent Trial and Appeal Board (PTAB). Read More…

Posted by: lscholz | 25th May, 2017

Reflections on Obligations in Canada

Post by Samuel Beswick

On May 5–6, the Peter A. Allard School of Law (University of British Columbia) hosted the inaugural Canadian Law of Obligations conference with the theme of Innovations, Innovators, and the Next 20 Years. The conference was held in honor of Professor Joost Blom QC to mark his retirement from a 45-year career at UBC’s Law School.

Justice Russell Brown of the Supreme Court of Canada, a UBC alumnus and unabashed “tortaholic,” opened the conference with praise of Canada’s legal heritage and the methodological constraints of stare decisis, analogical reasoning, and reasons-based persuasion that are both empowering and humbling features of common law adjudication.

The conference drew scholars from across North America as well as from England and Wales, Hong Kong, Israel, and South Africa. Across the nine panels and four keynote addresses, presentation topics traversed problems concerning public authority liability, the evolving torts of privacy and defamation, remedies for historic wrongs and abolition of historic rights, private law theory, empirical research and causation theory, trusts, and the implications of the good faith principle in contract law (the “tortification of contract,” as Professor Blom put it).

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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…

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