For readers of this blog who are interested, I have written a post for Harvard’s New Private Law blog, on what Commonwealth jurists can take away from the “new private law” movement in the United States.
The “new private law”, simply put, is a scholarly community that seeks to understand private law “on its own terms”. This is in contrast to the dominant approaches to private law scholarship in the United States, which tend to view contract, tort, and property as mere mechanisms for achieving one policy objective or another. For example, the traditional subjects of private law can be reduced to considerations of economic efficiency, or distributive justice, or some other policy objective. But according to new private law scholars, taking this approach too far can eclipse what is essential about private law, namely that it governs the interactions among private parties, and is not just another means of public regulation. In other words, the new private law rejects the proposition that “all law is public law”.
As my blog post notes, the idea that there is such a thing as private law, and that it is worthy of serious doctrinal analysis, may seem obvious to a jurist from the Commonwealth, since “functionalist” approaches that reduce law to policy objectives never came to dominate in Commonwealth countries. But as some of the reactions to the New Private Law blog indicate, this is far from obvious to Americans, with one bemused observer asking “WTF is private law?” and others rejecting the premise of the project outright.
For those interested in learning more about the “new private law”, the posts on the blog provide a good starting point. The blog grew out of Henry Smith and John Goldberg’s Project on the Foundation of Private Law at Harvard Law School. A special issue of the Harvard Law Review from 2012 deals with the new private law in greater depth. I would especially recommend John Goldberg’s “Pragmatism and Private Law” and Henry Smith’s “Property as the Law of Things”.