Posted by: pgoold | 17th Nov, 2016

North American Workshop on Private Law Theory IV

Post by Patrick Goold

Earlier this month, Fordham University School of Law hosted the fourth annual North American Workshop on Private Law Theory (NAWPLT). This edition of NAWPLT—a yearly conference that gathers U.S and Canadian private law scholars to discuss works-in-progress selected by a steering committee—was organized by Fordham Professors Aditi Bagchi and Ben Zipursky.

In twentieth century legal theory, few issues have received more attention than the question: “What is Property?” Eric Claeys, in Property as an Institutional Artifact, defends a revisionist view. To Claeys, property is not merely a form (a bundle of jural relations), but has an essential substantive content: exclusive use. A property right, on this view, confers on one individual the exclusive authority to benefit from or manage a resource. In a related vein, James Stern’s paper, titled Intellectual Property and the Myth of Nonrivalry, argued against the prevailing view that intangible goods are “nonrivalrous.” Insofar as people have incompatible desires about how intangible goods are to be used, they resemble tangible goods, and hence there can be a need for a legal architecture that delegates to one individual the exclusive right to decide how such goods are used.  

In Legal Positivism as an Idea About What Morality Might Be, Martin Stone considered through the lens of tort law another ‘eternal’ question: the relation of law and morality. Taking issue with the view that the distinctiveness of legal positivism resides in its account of the nature of law, Stone maintains that it instead resides in a particular instrumental understanding of the relation of morality to law. In Retaliatory RICO and the Puzzle of Fraudulent Claiming, meanwhile, Nora Engstrom discussed a new technique repeat-player defendants are using to fight fraudulent claims: the Racketeer Influenced and Corrupt Organizations Act (RICO). When it was signed into law in 1970, Congress probably did not envision that RICO’s provisions on bribery, fraud, and obstruction of justice would allow corporate defendants to retaliate against plaintiffs bringing baseless claims to court. Questions remain regarding whether such retaliatory RICO actions can be exercised in a sensible and even-handed manner.

Tess Wilkinson-Ryan and Brian Bix addressed contemporary problems in contract law and contract theory. In Contracts Without Terms, Wilkinson-Ryan provided empirical evidence suggesting that individuals tend to view terms disclosed in boilerplate as legally and morally binding, even when those terms are subject to legal challenge. Individuals are therefore likely to assent to harsh terms in the fine print, and then stick by them regardless of their enforceability. In The Promise and Problems of Universal General Theories of Contract Law, Bix questioned the validity of scholarly theories that “purport to describe, explain, or (and) justify all past, present, and all possible versions” of a given doctrinal area. In counterpoint to Bix, Hanoch Dagan defended a liberal view of private law generally (and contract specifically) based on the principles of self-determination and substantive equality in The Challenges of Private Law: A Research Agenda for an Autonomy-Based Private Law.

Lastly, Ronit Levine-Schnur and Henry Smith contributed papers on remedies and equity. Levine-Schnur, in Private Law Remedies and What We Owe to Each Other, argues that right-holders have an obligation to exercise their rights responsibly, which obligation in turn helps to explain at least some applications of doctrines including laches, proprietary estoppel, lost grant, clean hands, and statutes of limitations. In Fusing the Equitable Function in Private Law, Smith argued that the distinctive nature of equity resides in its functioning as a second-order check on the ability of actors to take opportunistic advantage of legal rules. The fusion of law and equity, Smith maintained, has caused us to lose sight of equity’s role, in turn unduly “flattening” modern thinking about legal rights and remedies.

With thanks again to Professors Bagchi and Zipursky for hosting this excellent workshop, we look forward to NAWPLT V.

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