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.
Massachusetts Supreme Judicial Court Unanimously Voids Foreclosure Sales Because Securitization Trusts Could Not Demonstrate Clear Chains of Title to Mortgages.
Vol. 123 No. 4 GENDER EQUALITY: DIMENSIONS OF WOMEN’S EQUAL CITIZENSHIP. Edited by Linda C. McClain and Joanna L. Grossman. New York, N.Y.: Cambridge University Press. 2009. Pp....
Vol. 122 No. 5 In recent years, the right to exclude has dominated property theory, relegating alienability – another of the standard incidents of ownership – to the scholarly shadows. Law and economics has also long neglected inalienability, despite its inclusion in Calabresi and Melamed’s Cathedral. In this Article, I explore inalienability rules as tools for achieving efficiency or other ends when applied to resources that society generally views as appropriate objects of market transactions. Specifically, I focus on inalienability's capacity to alter upstream decisions by would-be resellers about whether to acquire an entitlement in the first place. By influencing these acquisition decisions, inalienability rules can buttress or substitute for other adjustments to the property bundle in addressing resource dilemmas. Of particular interest is the possibility that limits on alienability could sidestep the holdout problems that have often spurred resort to liability rules, and could do so without interfering as profoundly with the owner's autonomy interests. While alienability limits carry well-known disadvantages, they might be structured in ways that would minimize those drawbacks. Recognizing the full potential of alienability limits in addressing resource dilemmas requires applying the same level of creativity to devising inalienability rules as has previously been applied to the design of liability rules.
Colorado Supreme Court Holds Defendants Liable for Full Profits from the Sale of a Home by Applying Unjust Enrichment Theory to an Informal Agreement Between Close Relatives.
Vol. 121 No. 6 Eminent domain for economic development is both attractive and appalling. States need the power to condemn because so much land in America is inefficiently...
