Eric R. Claeys

Exclusion and Private Law Theory: A Comment on Property as the Law of Things

This Comment responds to an article by Professor Henry Smith, “Property as the Law of Things,” forthcoming in a symposium sponsored by the Harvard Law Review on “The New Private Law Theory.” In his lead Article, Professor Smith critiques what he calls the “bundle” picture of property, which he attributes to Legal Realists. Using an economic theory of information costs, Smith concludes that the bundle picture does not explain as many basic features of property as a “thing” picture. I agree with Smith that the bundle picture suffers from many important problems, and I agree with his diagnoses of many of those problems. However, I prefer to study property not with economic analysis but with normative and analytical philosophy. Smith’s and my methodological differences may be of interest to the New Private Law Theory, which encourages close study of the criteria by which interdisciplinary theories of law purport to explain or justify private law. In that spirit, this Comment gives Smith’s information-cost economic analysis a hard look, relying on prior natural law and analytical legal positivist scholarship on the structure of the private law.

Intellectual Property and Practical Reason

ABSTRACT In scholarship on intellectual property (‘IP’), nonconsequentialist justifications for IP rights seem to suffer from one of two flaws. To some, such justifications seem indeterminate; they seem not to offer concrete guidance about how rights should be structured in practice. To others, such justifications seem dogmatic; they seem to mandate certain conclusions without letting decision makers consider the relevant context or consequences of different proposals to regulate IP. Both impressions neglect an important dimension of reasoning about rights—practical reason. In perfectionist theories of law, ‘practical reason’ describes the principles by which general justifications for rights are implemented in specific decisions in politics and ethics. This article introduces practical reason to IP scholarship, and it shows how practical reason facilitates reasoning about the design of different legal IP rights. The article illustrates with patent’s novelty requirement, copyright’s originality requirement, copyright’s idea–expression distinction, and the duration limits for various forms of intellectual property.

Sparks Cases in Contemporary Law and Economic Scholarship

“Sparks cases” arose in the late 19th century, when sparks from newly laid railroads caused fire damage to adjacent landowners. Sparks cases have become a staple example in law and economic scholarship over the last generation. This entry uses those cases to contrast the differences between leading approaches to law and economics and Austrian economics. Sparks cases illustrate concretely important differences between welfare-maximizing and order-securing legal theories of regulation. Many leading law and economic works assume that legal actors can maximize the welfare created from incompatible resource disputes; in sparks cases, such theories assume that legal actors may and should choose the regime of tort liability most likely to maximize the joint product from a railroad right of way and adjacent land. Austrian economics focus on basic ordering, for it presumes that information shortfalls, subjective value, and changing resource uses all make it prohibitively difficult for legal actors to identify the highest and best uses of resources in conflict. In such constraints, the tort principles that regulate sparks disputes should be designed around simple and clear property boundaries, so that railroad operators are strictly liable for fires caused on land owners’ lots by sparks from their trains. This basic Austrian critique may be applied in other, more recent, and more complex fields of regulation. If scholars hope to expose a wider audience of legal scholars to this critique, however, they must integrate Austrian themes better into the normative frameworks and scholarly categories applied by legal scholars.