Oxford University Press is pleased to announce the launch of Oxford Studies in Private Law Theory, edited by Paul Miller (Notre Dame) and John Oberdiek (Rutgers), and to issue a call for papers for the first volume. 

Oxford Studies in Private Law Theory is a series of biennial volumes showcasing the best article-length work across private law theory.  The series will publish exceptional work exploring the full range of private law’s domains and doctrines—including contract, property, tort, and fiduciary law as well as equity, unjust enrichment, and remedies—and employing diverse methodological approaches to individual areas of private law as well as to private law in general.  Submissions should be approximately 12,000 words, inclusive of footnotes.  The deadline for submission is May 6th, 2019.

All accepted papers will be presented at a workshop at Notre Dame’s Global Gateway campus in London in late summer/early fall 2019.  The Notre Dame Program in Private Law will cover the expense of contributors’ travel and accommodation.  

To submit a paper for consideration, please email Paul Miller ( paul.miller at nd.edu) and John Oberdiek ( oberdiek at law.rutgers.edu).

Post by Henry Smith

In his post, Eric Claeys introduces a couple of important forthcoming articles.  I welcome these contributions to the already extensive “debates” over property theory.  These articles are a real advance in the morally oriented property theory literature. I’d like to focus how they bring to that literature considerations that are more prominent in the functionalist literature than Eric’s article might lead one to believe.

By seeing property as an artifact, Eric is making room for a distinction I think is important to property theory: the purpose of property and the devices it uses to serve them.  Much of the normative literature in property conflates the two, leading the commentary to circle endlessly around questions like whether the right to exclude is “core” and how “use” should be built into property law, among others.

Eric recognizes that what he calls “refined” exclusion views (for an early version, see here) go some way to accommodating devices like easements and mortgages.  He claims that notions of governance – strategies that delineate property rights based on proxies more closely aligned with use than is the case with exclusion – do not explain the property status of such devices.  I disagree.  What makes governance a property institution is that it still keys off things. At the same time in doing that in a more fine-grained way it resembles other non-property devices like contract and tort, not to mention regulation, a great deal more than classic trespass-style exclusion.  Nuisance, covenants, zoning, and the like are all instances of governance. Easements fall somewhere in between exclusion and governance. I am open to the idea that property has some unique normative function, but I think that function is still going to relate to things. After all, contracts are artifacts (see here) and they can relate to things too.  Not every contract right dealing with things is a property right.

More generally, let me suggest that Eric’s recent work is compatible with New Institutional Economics, a broad framework I have adopted. NIE is all about institutions, and property can be fruitfully analyzed functionally as an artifact within such a framework (see here, here, and here).  Overall, the NIE exclusion-governance theory of property allows for all the nuance Eric desires, even with respect to fluid property like water rights and intellectual property (see this chapter in the Oxford Handbook of Law and Economics). 

Although it is a subject for another post, I believe that work on private law is beginning to show signs of convergence.  As Andrew Gold and I argue, external and functionalist approaches on the one hand and internal and interpretivist accounts on the other are moving closer together as they grapple with the complexity of the relations falling under institutions like property law.  Eric’s papers are a welcome sign of this desirable development.



Posted by: steveschaus | 10th Oct, 2018

Two Suggestions for Conceptual Property Theory

Post by Eric Claeys

In contemporary legal and philosophical theory, three perspectives loom large. For a century and more, conventional wisdom held that the best way to conceive of property is as a bundle of rights. In the nineties and the “oughts,” bundle views were questioned by scholars arguing that exclusion is crucial to property. These exclusion views have been developed on conceptual grounds, by James Harris and James Penner, and on economic grounds, by Thomas Merrill and Henry Smith. More recently, scholars who subscribe to Progressive property views have entered the fray as well.

In some of my previous writings, I have tried to offer an alternative to these three perspectives. As conceptual debates matured, however, I came to see that I had been explaining that alternative in terminology not familiar enough to many property scholars and conceptual philosophers. Over the last few years, I’ve tried to work out my own views in more familiar analytical terminology. In the process, I’ve come to realize that all along I’ve been trying to make two conceptual suggestions. In two forthcoming works, I explain both suggestions.

Here’s the first suggestion. In practice, property seems to operate relying not on one but rather on two concepts. (Hugh Breakey deserves credit for this basic insight, though he and I describe the boundaries of the concepts differently.) In one usage, the word “property” refers to a right in an ownable resource that vests in the proprietor broad authority to manage the resource. That is the concept on which exclusion views focus; in the rest of this post, I’ll refer to that concept as a concept of “ownership.” In another usage, “property” covers a wide range of legal interests in ownable resources. This field covers not only rights of ownership but also concurrent estates, servitudes, mortgages, and a wide range of other nonpossessory interests strong enough to be called “rights.”

Now for the second suggestion. To understand how property concepts operate, scholars may want to study them as institutional artifacts. An “artifact” consists of an object made (by its makers) and used (by its likely users) to satisfy some distinct goal associated with the artifact. An “institutional” artifact performs its goal by serving as a locus for coordinated interpersonal behavior. There now exists a thriving field of “social ontology”, studying the philosophy of artifacts and social objects; in recent work on jurisprudence, scholars have started to apply lessons from social ontology to law and legal concepts. Property scholars may want to study property concepts similarly.

I am proposing both of these suggestions in forthcoming companion articles. The first article is “Use and the Function of Property,” forthcoming in the American Journal of Jurisprudence. That article focuses primarily on the metaphysics and the analytical methods that underlie the suggestions I’m offering here. Those metaphysics and methods differ strikingly from the metaphysics and methods that underlie bundle views. Accordingly, “Use and the Function of Property” uses bundle views as foils to introduce and situate the social ontology views I hope to introduce.

The second article is “Property, Concepts, and Functions,” forthcoming in the Boston College Law Review. This article describes the implications of my suggestions for contemporary conceptual debates—about bundles, exclusion, and Progressive property. Recent scholarship seems to pit exclusion views against bundle and Progressive views. This contrast seems badly framed because different views are focusing on different concepts. Exclusion theorists seem most interested in studying the concept of ownership, while bundle and Progressive theorists seem more interested in the more capacious concept for property rights. In addition, these debates seem overwrought. Many of the differences between the different views can be explained away once one realizes that property law relies on complementary but separate concepts. And most remaining differences can be accounted for by the artifact functions that give property concepts their structure. “Property, Concepts, and Functions” illustrates with several prominent nonpossessory rights and concurrent estates: water rights, easements, running covenants, mortgages, and cotenancy interests.

Although these articles offer my views on property concepts more clearly than my earlier works did, they also leave me with more questions than they answer. In that spirit, I’d welcome any reactions or criticisms NPL readers may care to share.

Posted by: Erik Hovenkamp | 19th Jul, 2018

Don’t Talk about Him: Sir Cliff Richard OBE v. BBC

Post by Samuel Beswick.

Sir Cliff Richard is the latest celebrity to win substantial damages for invasion of privacy by a news organization in England. In the summer of 2014, the BBC broke the story that Sir Cliff was under Police investigation in relation to an alleged historic sex offence. It broadcast with “colour and sensationalism” [§55] the police search of his Berkshire home: dispatching reporters and a helicopter to the area, as well as to Sir Cliff’s other known residences in Europe. The singer was holidaying in Portugal with friends at the time. The Police dropped the investigation 22 months later. They brought no charges.

Sir Cliff sued the Police (who settled for £700,000 and a public apology) and the BBC. On July 18, the High Court of England and Wales found against the BBC and ordered payment of general, aggravated and special damages: Richard v. British Broadcasting Corporation [2018] EWHC 1837 (Ch).

Earlier this year my co-author and I made the argument that English privacy law is heading down a divergent path from other common law countries by embracing a framework that in practice favors privacy interests above conventional freedoms of speech and of the press. Mr Justice Mann’s judgment would appear to be a further illustration of our thesis. 

Read More…

Posted by: Erik Hovenkamp | 4th May, 2018

AALS Section on Remedies – Call for Papers [Updated]

Post by Erik Hovenkamp.

The AALS Section on Remedies will host a program entitled, “Intellectual Property Remedies at the Supreme Court and Worldwide,” to be held on January 4 at this year’s Annual Meeting in New Orleans (Jan. 2-6). The Call for Papers is below.

AALS Remedies Section – Call for Papers

UPDATE: The deadline for submission has been extended to July 30, in order to accommodate papers discussing recent Supreme Court decisions.  To be considered, please submit an abstract (and a draft paper if available) to the Chair of the Remedies Section: alexandra.lahav@uconn.edu.  

Post by John Golden

In an April 24 decision in Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, 584 U.S. __ (2018), the United States Supreme Court addressed a question previously highlighted on this blog (see posts of May 30, June 13, and December 4, 2017): the extent to which patents involve public or private rights for purposes of U.S. constitutional law. Specifically, the Court held that whether a patent claim should be canceled for lack of novelty or nonobviousness is “a matter involving public rights” and therefore may be determined by an administrative agency, the U.S. Patent and Trademark Office (USPTO), rather than an Article III court. With Justice Thomas writing for a seven-Justice majority, the Court emphasized its view that, although patents are a “form of property,” the decision to grant a patent—a matter long consigned to the USPTO—is a decision on “the grant of a public franchise” and thus liable to congressional reservation of administrative power “to revoke or amend” the grant. The Court thereby signals the existence of a subcategory of privately held property—namely, public franchises granted to private persons—that is particularly susceptible to administrative adjudication.

But what is a “public franchise”? The Court does not give a crisp definition. Nonetheless, by pointing to aspects of patents that apparently support their classification as public franchises, the Court provides some hints. First, the Court notes that the right to exclude provided by a patent “ ‘did not exist at common law’ ” (quoting Gayler v. Wilder, 51 U.S. (10 How.) 477, 494 (1851)), and is instead “a ‘creature of statute law’ ” (quoting Crown Die & Tool Co. v. Nye Tool & Mach. Works, 261 U.S. 24, 40 (1923)). Further, Congress has authorized such rights by exercising its constitutionally granted “power ‘[t]o promote the Progress of Science and useful Arts’ ” (quoting U.S. Const. art. I, § 8, cl. 8). In other words, Congress has provided for patents pursuant to a public purpose. These observations comport with a definition of “public franchise” that Justice Thomas has proffered before: a right or set of rights “ ‘which public authorities ha[ve] created purely for reasons of public policy and which ha[ve] no counterpart in the Lockean state of nature.’ ” Teva Pharm. USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 848 n.2 (2015) (Thomas, J., dissenting) (quoting Caleb Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 559, 567 (2007)). Read More…

Posted by: Erik Hovenkamp | 25th Apr, 2018

Call for Student Fellow Applications

Post by Erik Hovenkamp.

The Project on the Foundations of Private Law is now accepting applications for student fellowships. The deadline for submission is Friday May 25, 2018. 

Private Law Call for Applications 2018-19

Post by Patrick Goold

Last month it was revealed that Facebook shared users’ personal information with political consulting firm, Cambridge Analytica, and that such information may have been used to influence the US 2016 presidential elections and the UK Brexit vote.  For many, this event has highlighted the need for stronger privacy laws in the twenty-first century. Jennifer Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard University Press, 2018) is therefore as timely as it is fun to read. In a monograph packed with illuminating re-readings of leading cases alongside engaging celebrity stories, Rothman argues that a modified right of publicity could be an important tool for protecting individuals’ privacy interests in the Information Age.

The rights of privacy and publicity are sometimes seen as opposites. Privacy protects shrinking violets who wish to avoid the public’s gaze, while publicity protects the interests of celebrities who seek out the limelight, or so it is said. Indeed, some claim that the right of publicity was created precisely because privacy law failed to adequately protect the interests of public figures. According to a common historical narrative, courts frequently rejected celebrities’ attempts to restrain the use of their names and images under privacy law.  Privacy being the last thing any celebrity really needed, judges found privacy laws to be the wrong vehicle for protecting valuable celebrity personas; and thus there existed a need for a new and separate cause of action.  

In The Right of Publicity, Rothman shows the privacy-publicity divide is often an overly simplistic and unhelpful dichotomy. To begin with, the claim that a separate right of publicity was required to protect celebrities’ interests is historically incorrect. The original right of privacy that emerged in the late nineteenth century was regularly employed by public figures (ranging from the likes of inventor Thomas Edison, sportspeople such as golfer Jack Redmond, and politicians such as J.P. Chin) to restrain unwanted publicity. Furthermore, this right was used by individuals to prevent actions that we would now consider commercial misappropriation of name and likeness. Early privacy cases restrained the non-consensual use of an artist’s photo on an advert for life insurance, the use of a famous physician’s signature on quack medicinal pastilles, and there was uproar when society woman Mary M. Hamilton Schuylyer could not use privacy laws to prevent the use of her image on a commercial for flour.  

The true story behind the right of publicity’s origin is far more interesting than the conventional one; it is also, however, far more worrisome and troubling. The right of publicity was created not to adequately protect celebrity interests, but to protect the interests of Hollywood and other big businesses. The new right of publicity enabled businesses to commodify celebrity personas.  Whereas the right of privacy was a non-transferable personal right, the right of publicity was, and remains, a transferable property right. Hollywood and others pushed for the right of publicity’s adoption because doing so enabled them to acquire exclusive rights in celebrity personas, and thus monopolize the commercial exploitation of public figures’ identities. Read More…

Post by Patrick Goold

Intellectual property law is, in many ways, part of American private law. IP rights are commonly viewed as a type of property right (see e.g. here and here), and courts have historically been the dominant institution for enforcement of those rights. However, today IP law-making and adjudication is increasingly performed by administrative agencies. The Patent Trial and Appeal Board decides over one thousand validity actions yearly through its new inter partes review procedure, and the U.S. Patent and Trademark Office claims entitlement to Chevron deference on a range of issues. Consequently, some have questioned whether the increasing role of administrative agencies takes a matter of private law out of courts’ hands in a way that breaches the separation of powers. On the other hand, many support the increasingly administrative character of IP law (see e.g. here and here). Administrative agencies not only have the resources, but also the expertise, necessary to deal with the ever-more complex IP system.

To debate the role of administrative law-making and adjudication in IP, on March 29, the Project on the Foundations of Private Law at Harvard Law School hosted a conference on The Administrative-Private Law Interface in IP. This conference brought together scholars, policy-makers, and practitioners to discuss the role of the administrative state in IP law in the 21st century.

After a welcome by John Manning (Harvard Law School), opening remarks were provided by The Honorable David Kappos (Cravath, and former Director of the USPTO).  Mr. Kappos’s remarks set out his view of the balance that needs to be struck between the interests of innovators and implementers in a variety of areas, and more specifically warned that antitrust agencies with expansive views of their remit need to recalibrate the balance between securing competition in the short-run and promoting innovation in the long-run.

Video Here

The Honorable David Kappos delivering the opening remarks

Panel I was entitled Do Administrative Law and Private Law Mix in IP? This panel provided an overview of the interaction between administrative law and private law in the IP field, and provided a platform for the rest of the day’s discussion. The panelists were Arti Rai (Duke University School of Law), Todd Rakoff (Harvard Law School), Kali Murray (Marquette University School of Law), and the Honorable F. Scott Kieff (George Washington University School of Law, and former Commissioner of the International Trade Commission). Professor Ruth Okediji (Harvard Law School) moderated.

Video Here

Panel II dived into the debate surrounding the current Supreme Court case of Oil States v. Greene’s Energy. This case, discussed previously on the NPL blog here, here, and here, asks whether the Patent Trial and Appeal Board’s Inter Partes Review procedure violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury. Professor John Golden (University of Texas School of Law) moderated what was a very lively and exciting panel. The panelists were Adam Mossoff (George Mason University, Antonin Scalia Law School), Sophie Wang (Choate LLP and Boston Patent Law Association), John Duffy (University of Virginia School of Law), and Caleb Nelson (University of Virginia School of Law).

Video Here

Panel III turned to the issues of deference and preclusion. How much deference should courts give to administrative agency decisions (such as those made by the USPTO)? And when should administrative decisions preclude parties later bringing claims in court? Eric Claeys (George Mason University, Antonin Scalia Law School and Visiting Professor at Harvard Law School) moderated. The panelists were Melissa Wasserman (University of Texas School of Law), Megan La Belle (Catholic University of America, Columbus School of Law), Kristin Hickman (University of Minnesota Law School), and John Golden (University of Texas School of Law).

Video Here

Panel IV then turned to the role antitrust agencies should play in IP. Erik Hovenkamp (Harvard Law School) moderated. The panelists were Keith Hylton (Boston University School of Law), Anne Layne-Farrar (Charles River Associates and Northwestern University Pritzker School of Law), and Scott Hemphill (NYU School of Law). Unfortunately, no video could be recorded for this panel.

And finally, a rousing closing speech was delivered by The Honorable James Smith (Ecolab, and former Chief Judge of the Patent Trial and Appeal Board). Mr. Smith’s prior role at the PTAB gave him a unique perspective on the conference theme. In his speech, Mr. Smith asked the audience to imagine he was running for Congress on a platform of improving American innovation. He then outlined a series of reforms which he saw as necessary for strengthening patent rights to make American IP great again.

Video Here

Lastly, thank you to the University of Texas (and to Professor John Golden in particular) for co-organizing the event, and thank you to Qualcomm for sponsoring it.

Posted by: pgoold | 21st Mar, 2018

Equitable Defences as Meta-Law

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 a range of equitable defenses serve a second-order function of equity – intervening into first-order law to solve complex problems involving opportunism, multipolar problems and conflicting rights.  It also provides criteria for fusing equitable legal defenses and an explanation for why some equitable defenses have been more generalizable than others.

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