New Private Law

For those who persist in the incorrect belief that equity is of antiquarian interest only, equity is now on YouTube. Recently Christophe Gösken of ETH Zurich interviewed Henry Smith about two of his papers on equity as meta-law. Video here. The papers can be found here and here.

Apply to be a Postdoctoral Fellow

We are now accepting applications! Materials are due by 9:00 am on February 28, 2023. See the call for applications for additional details and requirements.

Postdoctoral Fellowship in Private Law – Description

Postdoctoral Fellowship in Private Law – Call for Applications

We are now accepting applications for student fellows for the academic year 2022-2023!

Applications will be accepted until Friday, September 16, 2022.

See the call for applications for additional details and requirements:

Student Fellowship in Private Law – Call for Applications

The AALS Section on Remedies invites paper submissions for a panel on “Remedies in the Restatements” at the January 3–7, 2023 Annual Meeting. Please note that this meeting is currently planned to be held wholly in person. The Remedies session is scheduled for 3 to 4:40 pm on Thursday, January 5. The session, which is cosponsored by the AALS Section on Torts and Compensation Systems and the AALS Section on Intellectual Property, will feature discussion of the current Torts and Copyright Restatement projects. Papers may, however, focus on remedies issues relevant to other Restatement projects. This call for papers is open to all full-time faculty members at AALS member or affiliate schools. Pre-tenured professors and junior scholars are strongly encouraged to submit papers. Panelists will be responsible for payment of their registration, hotel, and travel expenses. For your submission to be considered, please submit a title and abstract, and if available an introduction, to John Golden ( jgolden at law.utexas.edu), by August 12, 2022.

Call for Applications

Fulbright Postdoctoral Research Fellowships for U.S. Citizens at Bar-Ilan University:

For an international research group on Voluntary Compliance, funded in part with an ERC Advanced Grant
Title of the Project: “Generating Voluntary Compliance Across Doctrines and Nations: Integrating the Behavioural and Regulatory Aspects of Governments’ Ability to Trust the Public’s Cooperation, Ethicality and Compliance”

We are looking for candidates with strong quantitative methodological backgrounds coming from disciplines such as Statistics, Economics, Public Policy, Psychology, Law, and Political Science. The candidate should have a PhD or equivalent degree.

For further information or inquiries about the project, please contact:
Yuval Feldman, PI of the project – Yuval.feldman@biu.ac.il
Academic Years 2023/24 and 2024/25

Benefits:

• Stipend: $95,000 ($47,500 per academic year for two years)
• Reimbursement of airfare expenses for Fulbright fellows (and spouses)
• Partial reimbursement of children’s education expenses and fees

Apply by September 15, 2022

Visit the program page on our website at https://www.fulbright.org.il/program/2/752

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for full-time, one- to two-year residential appointments as Postdoctoral Fellows in Private Law, starting in the fall of 2022. Application materials are due to Bradford Conner ( conner at law.harvard.edu) by 9:00 a.m. on February 28, 2022. 

Postdoctoral Fellowship in Private Law

The Fellowship is a one- or 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 will be selected from among recent graduates, early-stage 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.

A description of the Private Law Fellowship is here and the call for applications is here. A link to the Project’s website is here. 

The Edmond J. Safra Center for Ethics at Tel Aviv University is happy to announce its call for Post-Doc Fellowship applications for the academic year 2022-23. We encourage applicants from all disciplines and fields, including economics, social sciences, business, the humanities, and the law. Please check our website — or a PDF version of the announcement — for more information. Deadline for submission of all application materials: Jan 31, 2022. Application materials should be sent by e-mail to: safracen@tauex.tau.ac.il.

Post by Andrew Verstein

As Paul Miller recently observed, New Private Law scholars have largely hewed to tort, property, contract, or fiduciary law. Comparatively little attention has been devoted to business entities such as corporations and partnerships. Yet without the NPL label, there is fascinating work underway that is well worth the attention of this blog’s readers. As an exhibit, I commend Harwell Wells’s new paper (forthcoming in the Vanderbilt Law Review)  “The Personification of the Partnership.”

Wells’s focus is the familiar debate over entity ontology. Do entities “exist” or are they fictions, reducible to the sum of their members? For corporations, this debate is normative (overrule Citizens United!) or conceptual (does a corporate ‘intend’ things, for the purposes of specific-intent crimes?), but there is no plausible doctrinal debate. Corporations are legal persons. By contrast, the ontological status of partnerships has been in active flux for more than a century. Nineteenth century jurists like Story and Kent rejected the legal personhood of partnerships, but by the end of the century, elite opinion had shifted decidedly toward recognizing the partnership as its own legal person. Dean Ames drafted the Uniform Partnership Act to firmly endorse the entity view. But then Ames died, and his successors redrafted the UPA to be ambivalent about whether and to what extent the partnership is an entity distinct from the set of its partners. The UPA remains the law of many commercially important states such as New York. Litigation under UPA partnership law is often litigation about entitization.  

Wells sheds new light on partnership ontology by excavating the forgotten reasons why the UPA drafters refused to endorse the entity view partnership, despite its endorsement by Ames and other leading advisors. The answer is a peculiar braiding of doctrine, normativity, and conceptualism: legal practitioners came to view the partnership as the corporation’s moral superior, in terms of the ethical relationships the form supported in its participants. Partnerships linked partners in a way that made them better people, and corporations risked the opposite.

This critique was rooted in entity ontology. Partners were inspired to live up to a high standard because they were in direct privity with their coadventurers and creditors. People want to do right by those they are connected to. And if there is a moral failing, they must own it as their own. By contrast, a corporation intermediates the relationship between all corporate patrons. Two investors are nothing to each other, they are only something to the corporation. Likewise, the shareholder to the corporate creditor. It is easier to take liberties with people to whom you do not hold some special and direct relationship.

Wells describes how American lawyers believed that partnership could spin privity into decency – but not if the partnership was just a corporation with funny voting and profit rules. The partnership had to be nothing, or else it was nothing special.

Post by Henry Smith

I have just read and greatly enjoyed this wonderful new book by Joe Kearney and Tom Merrill about the shaping of the Chicago Lakefront. Sometimes this shaping is literal (or littoral?), because Kearney and Merrill embed a highly expert and engagingly written history of the legal controversies surrounding the Lakefront with a social and even geographical account. Human activity impacted the actual Lakefront not just through landfill, over which some controversies, sometimes even violent ones, were fought, but even through efforts by various landowners to promote accretion. As the title reflects, a central part of the story is occupied by the public trust doctrine and the famous Illinois Central case of 1892, and Kearney and Merrill have done an incredible detective job to root out the story of how the Lakefront Act of 1869 (granting submerged lakefront land to the railroad) was passed. They investigate how much corruption was there, down to who ate dinner with whom on the night before passage!

What is especially impressive is how the various legal controversies interacted with each other in a semi-contingent way. While the authors maintain a wide lens—the characters involved range from Cap Streeter, to the Catholic Potawatomis, to Montgomery Ward and the well-heeled business elite on Michigan Avenue—the story, from railroad yards to museums to parks, is ultimately one of elites getting their way over other elites. They also draw measured lessons from this sweeping history about how the law is and is not important and how its ultimate effects on the common good are semi-predictable at best. This is a richly-textured history that will appeal to legal experts and laypeople alike. And for anyone who has lived in Chicago, it will make one appreciate the city in new ways. This is perfect summer reading, even if one can’t find one’s way to the beautiful beaches on the Chicago Lakefront to do it.

We are excited to invite legal scholars to participate in a virtual Workshop on Private Law and Emerging Technology cosponsored by Harvard’s Project on the Foundations of Private Law, Yale’s Information Society Project, and Yale’s Center for Private Law. This Workshop will be a forum for in-depth engagement with works-in-progress at the intersection of private law, technology policy, and the societal changes engendered by widespread adoption of new technologies. Rather than identifying sui generis policy proposals for specific ills, we are interested in determining how our systems of private law and private ordering are affected by, provide solutions for, and influence technological change. As part of private law, we include property, contracts, torts, equity, as well as intellectual property and commercial law, among others. This remote Workshop is scheduled for three consecutive Fridays in September 2021: Sept. 3, 10, & 17 from 1­–3PM (Eastern). For more information, please see the attached PDF. To submit an abstract for consideration, please send one of less than 600 words to cfp.isp@yale.edu with the subject “Submission for Private Law & Emerging Tech CFP” by June 13. For any other questions, please contact João Marinotti (jmarinot [at] iu [dot] edu).