Private Law Theory

Abstract:
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