CPLC Work in Progress Seminar: 'The Domain of Private Law: An Anglo-American Comparison'

Speaker: Professor Chaim Saiman, Villanova University

This article explains why doctrinally sophisticated private law is a more prevalent feature of Anglo legal culture than its American counterpart. The paper opens with a survey of American and Anglo private law that shows Anglo-Commonwealth law to be considerably more confined, conceptual and complex than parallel American law. This affirms the account that legal realism transitioned American private law from a doctrinal discourse, to a discussion centered on pragmatic considerations enmeshed within the State’s regulatory regime. But this is only part of the story. The ensuing sections show that rather than eliminate conceptual thinking, American law has simply repackaged it into public law, statutory interpretation, and civil procedure. Moreover, here tables are reversed: while English law on these matters is flatter and more intuitive, American law has produced an imposing edifices of doctrine that easily rival anything found in English private law. The final sections suggest the trends are related. As the realists diminished the coherence of private law, legal legitimacy shifted away from “the law” as an autonomous entity towards the authority grounded in the state. With its justificatory burden diminished, the domain of US private law shrunk. Conversely, with quest for legitimacy moving to the institutions of state, the triad of American public, procedural and legislated law became more, complex, conceptual and contested. English private law is the subject of intricate doctrinal analysis, because private law how important social questions are processed through the legal system. The hollowing out of American private law transitioned difficult social and legal questions to public and procedural law which in turn adopted parallel characteristics. The issue is less about whether law should be formalistic, but which type of formalism the law will embody.

This seminar is open to all LLM, MCL and PhD students, Faculty members and Faculty visitors.