Posted by: steveschaus | 11th Feb, 2019

Freilich on Prophetic Examples

Post by Janet Freilich

Patent law – like many areas of private law – is riddled with unusual, obscure, and sometimes incomprehensible rules. In a forthcoming paper, I draw attention to a particularly puzzling doctrine of patent law: patents can include fictional experiments and made-up data. Take, for instance, the following experiment published in a recently granted patent:

“A 67-year old male has pancreatic cancer…He is provided with A. paucinervis pomel extract [the patented invention] for three years. The patient is examined later and…[h]is tumor is reduced in mass…”

What appears at first glance to be a groundbreaking finding is, unfortunately, merely a fictional experiment with a made-up result.

Though normally the phrase ‘made-up data’ would trigger accusations of fraud, in the context of patents, making up data is not fraud. Both the PTO and the Federal Circuit have found such made-up data to be permissible in patents and, for purposes of proving patent validity, fictional data in treated as largely equivalent to factual data.

These fictional experiments are called “prophetic examples” in the sense that the patentee is prophesizing what might have happened had the experiment actually been conducted. Somewhat surprisingly, they have flown entirely under the radar – there is no in-depth scholarship on the phenomenon.

I found the concept intriguingly strange and wanted to know more. In an empirical study of prophetic examples in 2 million chemistry and biology patents and applications, I found that 17% of experiments in patents are prophetic, and almost one quarter of patents contain at least one prophetic experiment. I further characterize who uses prophetic examples and provide some evidence as to when and why such examples are used. Perhaps most shocking is how prophetic examples are interpreted by scientists. Though some scholars have suggested that scientists ignore patents, a recent survey has found that scientists do read patents – but they clearly do not understand prophetic examples. I find that 99% of citations in the scientific literature to prophetic examples cite the example as if it were real. 

Prophetic examples are clearly causing confusion and should no longer fly under the radar. I hope my study is a first step towards learning more.



Post by Henry Smith

Yun-chien Chang and I have a paper out on SSRN about comparative property law. We differentiate between aspects of property law that are structural versus those that are stylistic and between those that are more integrated into the law and those that are more detachable.  We derive some predictions for cross-linguistic variation, which we illustrate with a snapshot from a data set of property laws in 119 jurisdictions across the world.  The paper (which can be found here) is part of an NYU symposium on Convergence and Divergence in Private Law that will appear in the Southern California Law Review.  The abstract follows:

This article utilizes a unique data set of property laws in 119 jurisdictions in the world to test convergence/divergence theories in comparative property law. Our theory predicts that first, the structure of property law among all jurisdictions in the world will converge, or is similar since some time in the distant past, as they all face the same, positive transaction costs in delineating property rights. Second, our theory posits that the style of property law will tend to converge when the doctrines in question are isolated, but diverge when they are interconnected. Our data and descriptive analysis support the theory. Doctrines regarding possession, sales, condominium, tenancy in common, and limited property rights serve as prominent examples.

Figure 1 Jurisdictions Used in Analysis

Posted by: steveschaus | 17th Jan, 2019

Harold Demsetz (1930 – 2019)

Post by Henry Smith

It is with great sadness that I just learned that the great economist Harold Demsetz passed away on January 4, 2019 at age 88.  Harold was as famous in the law and economics of property as he was in several fields of economics.  Recent remembrances can be found here, here, and here.

As President of the Society for Institutional and Organizational Economics, I had the privilege and honor of conferring on Harold the first Elinor Ostrom Lifetime Achievement Award on behalf of the organization in 2015:

From the citation for the award:

Harold Demsetz is Arthur Andersen UCLA Alumni Emeritus Professor of Business Economics. He previously taught at the University of Chicago and the University of Michigan. He chaired UCLA’s Department of Economics from 1978 through 1980. From 1984 to 1995, he held the Arthur Andersen UCLA Alumni Chair in Business Economics and Directed UCLA’s Business Economics program.

A towering figure in the economics of institutions and organizations, he is listed in Mark Blaugh’s Great Economists Since Keynes. His works are focused on property rights, the business firm, problems in monopoly, competition, and antitrust, and even bioeconomics. Harold Demsetz is the author of numerous articles, two published monographs, and five books. His most recent book is From Economic Man to Economic System: Essays on Human Behavior and the Institutions of Capitalism, published in 2009 by Cambridge University Press. The 1972 article he co-authored (with Armen A. Alchian) “Production, Information Costs, and Economic Organization,’ in the American Economic Review, was selected by the American Economic Association as one of the 25 most important papers published in the 100 year history of the AER. His 1967 paper, “Toward a Theory of Property Rights” also in the AER, has inspired an entire literature. Professor Demsetz is an elected Fellow of the American Academy of Arts and Sciences, past director of the Mont Pelerin Society, and past (1996) President of the Western Economics Association International. Northwestern University, in 1994, awarded him an Honorary Doctorate in Humane Letters, and, in 1996, he received an Honorary Doctorate in Social Science from Francisco Marroquín University. Drexel University, in 2012, honored his work on corporate governance, and, in the same year, the University of California Los Angeles honored his work across all disciplines.

On a more personal note, Harold’s work has been hugely influential for me. The first conference I co-organized was on the Evolution of Property Rights, an exploration of the Demsetz Thesis.  In a very short 1967 paper, Harold started the modern field of property rights economics. He presented a simple model of property rights according to which property rights emerge when their benefits in terms of problems solved exceed the cost of furnishing them.  His use of Eleanor Leacock’s study of beaver-hunting territories among the Montagnais and Naskapi tribes of the Labrador Peninsula is one of the most well-traveled case studies in law and economics.  The literature springing out of this one paper is vast and still growing rapidly. 

Harold was never a “blackboard economist.” His work was always tethered to reality.  Coining the term “nirvana fallacy,” he stressed the importance of comparing real-world institutions to potential real-world alternatives.  The failure of an institution to live up to the ideal is not yet an argument for replacing it.  Although warnings about the nirvana fallacy are now a staple of comparative institutional analysis, expecting the total eradication of the nirvana fallacy would probably be an instance of it!

As those who met Harold in person or saw him speak, there are few people – much less academics and economists! – who combine such sharpness with twinkling humor.  One of his favorite sayings was that Ronald Coase got the Nobel Prize for an article that he Harold had written many more times!  As a great thinker and a warm human being, Harold is an irreplaceable original, who will be greatly missed.

The Project on the Foundations of Private Law at Harvard Law School is seeking applicants for full-time, one- to two-year residential appointments, starting in the fall of 2019 — in particular, it is seeking applicants for both the Postdoctoral Fellowship in Private Law and the Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property. Application materials are due to Bradford Conner ( conner at by February 15, 2019

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.

You can find more information about the Private Law Fellowship here. A link to the Project’s website is here

Qualcomm Postdoctoral Fellowship in Private Law and Intellectual Property

The Qualcomm 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 intellectual property and its connection to one or more of property, contracts, torts, commercial law, 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 intellectual property and 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.

You can find more information about the Qualcomm Fellowship 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 2019-20. We encourage applicants from all disciplines and fields, including economics, social sciences, business, the humanities, and the law.

The Edmond J. Center Safra stands at the forefront of academic research in the critical and multidisciplinary interface between market, ethics and law. We promote a variety of activities, designed to stimulate dialogue, to exchange and advance knowledge, and to explore new ideas. Above all, we aim at gaining new insights that will strengthen our understanding of the various markets in which we operate and contribute to making them fair and just. The Edmond J. Safra Center for Ethics cohort of fellows represents a diverse group of young scholars from top institutions. Alongside their research, the fellows participate in a set of advanced research seminars and in a weekly colloquium to discuss foundational texts and present their personal projects. The Center collaborates with the fellow Center at  Harvard University and is proud of the all-star international advisory board composed of distinguished experts in law, political science and philosophy.

Application materials are due by February 15, 2019, and should be sent to  safracen at A PDF version of the announcement is available here. Please check our website for more information.

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 and John Oberdiek ( oberdiek at

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:  

« Newer Posts - Older Posts »