Contract Law Article

Introduction: Pragmatism and Private Law

Vol. 125 No. 7 Like many legal concepts, “private law” has recognizable referents yet eludes precise definition. Private law defines the rights and duties of individuals and private entities as they relate to one another. It stands in contrast to public law, which establishes the powers and responsibilities of governments, defines the rights and duties of individuals in relation to governments, and governs relations between and among nations. Private law includes the common law subjects that have long been central to U.S. legal education – contracts, property, and torts. But it is not limited to those subjects, nor to common law. Statutory fields such as intellectual property and commercial law fall within private law. So too do areas of law now mostly neglected in U.S. law schools, such as agency, unjust enrichment, and remedies. At a broader level, the phrase “private law” gestures toward an elusive set of distinctions between what is public and what is private. Private law is law, so government is involved, albeit in a particular way. Typically, it makes available institutions and procedures that enable individuals and entities to define their relationships and to assert and demand the resolution of claims against others. Courts are central to this framework, but so too are arbitral panels. In turn, this institutional framework builds on and partly incorporates customs and social norms pertaining to interpersonal interaction.
Law and Economics Article

The Easy Case for Products Liability Law: A Response to Professors Polinsky and Shavell

Response to The Uneasy Case for Product Liability
Vol. 123 No. 8 The Uneasy Case for Product Liability, authored by Professors A. Mitchell Polinsky and Steven Shavell, cannot sustain the burden it has set for itself. The evidence it marshals is surprisingly scant, consisting of anecdotes about products that suffered declining sales after being linked to certain injuries, observations about consumer’s improved access to safety information, a brief review of inconclusive studies of whether a rule of strict liability better deters the sale of unsafe products than a negligence rule, reminders of the high costs of civil litigation, and a smattering of microeconomic theory. These observations are nowhere near sufficient. In essence, Uneasy argues for the elimination of an entire body of law based on the absence of social scientific evidence of a certain sort demonstrating the significance of its contribution to the goals of deterrence and compensation.