Oman and Solomon, ‘The Supreme Court’s Theory of Private Law’

In this Article, we revisit the clash between private law and the First Amendment in the Supreme Court’s recent case, Snyder v. Phelps, using a private-law lens. We are scholars who write about private law as individual justice, a perspective that has been lost in recent years but is currently enjoying something of a revival. Our argument is that the Supreme Court’s theory of private law has led it down a path that has distorted its doctrine in several areas, including the First Amendment-tort clash in Snyder. In areas that range from punitive damages to preemption, the Supreme Court has adopted a particular and dominant, but highly contested, theory of private law. It is the theory that private law is not private at all; it is part and parcel of government regulation, or “public law in disguise” …

Nathan B. Oman and Jason M. Solomon, The Supreme Court’s Theory of Private Law, 62 Duke Law Journal 1109-1168 (2013).

First posted 2013-03-19 08:35:38

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