HLS Professor Henry Smith directs the Project on the Foundations of Private Law and co-teaches the Private Law Workshop
Henry Smith on Private Law
Henry Smith is the director of Harvard Law School’s Project on the Foundations of Private Law. In conjunction with the project, which he launched in the fall of 2010 with Professors John Goldberg and George Triantis, a Private Law Workshop is being held this term for the first time (see sidebar). An expert in the laws of property, intellectual property, natural resources, and taxation, Smith joined the HLS faculty in 2009 and was named the Fessenden Professor of Law last year.
What is private law?
Private law is the part of the law that guides the interaction of people in society, very broadly. More specifically, it corresponds to what would be called private law in the civil law countries. In those countries, there’s a self-contained theory of private law, and the goal in our project is to do an interdisciplinary study of that part of the law. Another way to think about it comprises the traditional common law subjects—property, torts, contracts, some that have been neglected like restitution and unjust enrichment, and allied areas.
What do you hope to accomplish with the Project on the Foundations of Private Law?
One thing is the idea of studying private law as a whole—how these different parts work together, don’t work together, are similar and different. Also within these areas, there are some characteristically private law issues. We want to bring back serious study of these individual areas. Certain areas of private law have fallen off the radar, and this is a good way of bringing attention back to them. A prime example is restitution. This is the hot topic of private law in England. It’s quite neglected here. We believe that serious study of private law will be useful in law schools in general. There is a need for people to go out and teach in these areas. These issues are extremely timely and come up in practice all the time. The Madoff litigation is just the latest super high-profile one, to take restitution as an example. Issues of equitable remedies are very important in practice, and we in law schools are in a very good position to give students a sense of the landscape, which we believe will serve them very well when they go out into practice and encounter these issues instead of having to navigate them for the first time without any kind of map.
What are you exploring in your scholarship?
I am particularly interested in the relationship of property and contract. Very much tied into private law, a prototypical property right is good against the world as opposed to a contract right, which avails between the contracting parties. From that difference, many of the contrasts between property and contracts flow. Property law and contract law often are solving a different problem. So I apply information cost economics to explaining some of the basic differences between property and contracts.
What is your latest book, “The Architecture of Property,” about?
Property has often been thought of as a collection of rights and privileges, and property law has been considered a collection of this rule and that rule. Many commentators take some specific rule and ask whether it is efficient and fair. But that overlooks what I’m calling architecture of property. Certain features of property aren’t fully detachable, and we shouldn’t study them only in isolation. There is a basic architecture, and part of it is that property is a law of things. Taking a thing as a starting point is actually quite important from an architectural point of view. The world is a lot simpler if we start our rights system with reference to things, and how we define a thing, and when we depart from our everyday notion of a thing. The idea is that explanations for property have to be holistic.
Professors Smith and Goldberg reinvigorate the study of Private Law at HLS
Professor John Goldberg co-teaches the new Private Law Workshop.
When John Goldberg was a law student, he had a problem in classes like contracts, torts and property. The problem wasn’t with the subject matter, but with the fact that some professors didn’t seem to take it seriously enough.
“These are basic and important legal categories, even today,” he said. “I felt that way intuitively reading the cases, and I was being taught by a lot of professors who didn’t have that view.”
Now a professor himself, Goldberg is working with Professor Henry Smith to reinvigorate the study of such traditional law school subjects with the new Private Law Workshop, which they co-teach as part of the Project on the Foundations of Private Law at Harvard Law School. The workshop, said Goldberg, is “an opportunity to introduce students to some of the emerging literature that’s aiming to rethink the significance of private law in modern legal systems.”
Featuring several guest speakers conducting the latest research on private law topics like torts and contracts, the workshop often incorporates philosophical, historical and economic perspectives. For example, one speaker examined whether contracts are best understood as devices that allow efficient allocation of resources or that ensure parties will keep their promises. Another recent session on the law of restitution, conducted jointly with faculty and students at Oxford University in England, offered valuable insight from foreign lawyers and scholars, who tend to offer a different perspective on private law matters, according to Goldberg.
Patrick Withers ’12, a student in the class, praised the session for addressing a subject often ignored in the U.S. He said the professors and the guest speakers have provided a good survey of the different issues of private law.
“The idea of getting to meet academics who were workshopping their papers and to talk with people who are really on the cutting edge of this discipline was something that really appealed to me,” he said.
In particular, the workshop has made Withers interested in issues of property rights, which he expects that he will apply in legal practice. That sentiment resonates with Goldberg, who hopes that students will learn lessons that will benefit them at HLS and beyond.
“We want students to learn about the subjects and the academic debate in these subjects in part because we think it will help them stand out in the academic job market,” he said. “There’s no comparable program at other comparable schools. And we hope it will revive lines of inquiry that have been pretty sleepy in the legal academy for some time now.”