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 for the first time this term. 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. In the following Q&A with Harvard Law Today, he discusses the nature of private law, the work of the project, and his scholarship, including a new book.
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 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.
How can students participate in the work of the project?
We have student fellows, and the idea is for them to write a serious paper on a private law subject. We very much invite perspectives from history, philosophy, economics, and these fellows are exposed to private law intensively. We have monthly events where we bring in people who have works in progress. Particularly for the ones who are thinking about teaching, this is a great way for them to be introduced to the field really at the cutting edge and see how the field is developing right before their eyes and how they can start doing that themselves. The subject matter is extremely important, so we believe the people who do this will profit from it regardless of what they wind up doing.
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.
You hold a Ph.D. in linguistics and have taught the subject. Does your linguistics training influence your work at HLS?
Yes, it has. Linguistics in its cognitive science aspect is related. There is a somewhat burgeoning field of law and cognitive science, and we certainly want to integrate that into this project. I’m very interested in how the tool of modularity manages complexity. This is a very central notion of cognitive science. Roughly the idea is that a complex system is easier to manage if you break it into components. These issues play out in property and private law in general. We strive for simplicity sometimes and allow complexity in other situations, and studying it as a modularized system is a fruitful way of looking at it. It’s very much in tune for the vision we have for this project.