PHILOSOPHICAL FOUNDATIONS OF PRIVATE LAW: A COMPARATIVE APPROACH

This course is divided into three primary sections, each four weeks in length. First, we will discuss Property: the fundamental question of who owns what. We will begin by looking at a few cases that raise thorny property questions. Analyzing those cases will help motivate our exploration of recent legal work on the theory of property. Finally, we'll connect the legal literature to the rich philosophical literature describing ownership and distributive justice. (Note: although Property has some public law elements--particularly takings--we will avoid those elements in this course). Second, we will discuss Torts: the question of what to do when others trespass on my property rights. We will begin by looking at a few torts cases that introduce core concepts surrounding the Calculus of Negligence. That analysis will lead us to a few groundbreaking legal articles that help explain why law and economics is so influential in American legal writing today. Finally, we'll look briefly at the broader philosophical literature surrounding Torts--with an emphasis on areas open for new research. Third, we will discuss contracts: how to alienate property and enter into private arrangements for the future. We will begin by considering the fundamental question of contract formation, contrasting consideration (the rule of the common law) with more formal constructs common in civil law systems. We will use that question as a springboard to examine, comparatively, the limits of contract. Thinking about contract limits will lead us into some of the legal literature on the theory of contracts and their purpose. That literature will lead, naturally, to a discussion of contract as a broader part of philosophy: from contractarian theory in moral philosophy to social contract theory in political philosophy.

This course is structured as a seminar. As a result, the primary method of instruction is by vigorous discussion and argument. In-class meetings and direct participation are the heart of this course. Although reading and preparation are both important, the life of the course is our arguments in class together. Alas, this is not the Paper Chase. So, I will also supplement our discussions with side-videos and with presentations by outside experts. And I shall be gentle with my Socratic method: no Kingsfield, I promise.

Grading in this course will be based on a final paper, an optional final examination, and by class participation. There are three grading modes possible: (1) Final Paper (75%), Class Participation (25%) (2) Final Examination (85%), Class Participation (15%) (3) Final Paper (45%), Final Examination (40%), Class Participation (5%) I will select whichever of these three modes provides the highest grade. This class is not curved and in principal every grade is available for every student.

There is no textbook for the course. Individual cases and selected readings will be provided directly to students throughout the class.

Although there is no general textbook for the course, several texts may be useful for students to consult as they work through the course materials. These books include: Dawson et. al., Contracts: Cases and Comments (2019), https://faculty.westacademic.com/***** Victor Schwartz, Kathryn Kelly & David Partlett, Torts: Cases and Materials (13th ed. 2015)., https://www.amazon.com/***** Henry Smith, Thomas Merrill, Property: Principles and Policies (2012), https://www.amazon.com/*****

This course will primarily be taught in English. I will mostly speak English during my presentations. However, questions are welcome in Japanese (my apologies in advance if I ask you to repeat your question more slowly).