Danielle D’Onfro and Daniel Epps (both Washington University in St. Louis – School of Law) have posted Constitutional Rights and General Private Law (Harvard Law Review, forthcoming) on SSRN. Here is the abstract:
Public and private law are treated as doctrinally siloed opposites. But the two are surprisingly interrelated in the arena of constitutional rights. Courts must define, for constitutional purposes, various private law entitlements: what interests constitute property, when a contract has been made, and when government conduct constitutes the tort of trespass, among other pervasive issues.
How should courts resolve such definitional questions? And what sovereign should have the power to provide those answers? In a post-Erie legal universe, the immediately obvious answer is that constitutional “property” and similar entitlements must be creatures of state law. All the more so given that the seeming alternative—asking courts to craft a federal version of private law from whole cloth—poses daunting challenges.
This Article argues that this is a false dichotomy. Private law entitlements underlying constitutional rights need not depend on state positive law. Nor must federal courts reinvent private law from first principles. Instead, there is a third way: drawing on principles found in general private law. That is, courts should define concepts like property “in general” by drawing on the accumulated wisdom of history, precedent, and custom across numerous jurisdictions. While the legitimacy of general law is today deeply contested in constitutional law, there is a discernible and conceptually coherent category of general private law resistant to leading critiques by skeptics. With familiar private-law doctrines such as contracts, property, and torts, courts can, and do, distill broad principles of American jurisprudence.
Recognizing the role of general private law in constitutional rights has great explanatory power. Moreover, that approach is superior to the alternatives on offer—most fundamentally because it avoids opportunistic behavior by states seeking to evade constitutional guarantees.
This approach also has significant theoretical implications for both public and private law. For constitutional law, the approach shows that general law, shorn of its most controversial jurisprudential commitments, remains a viable and useful way of thinking long after Erie. As for private law theory, recognizing why general law reasoning has been necessary in constitutional analysis reinforces that concepts like property have recurring, core meanings that transcend positive law.
Highly Recommended!
To receive new posts from Legal Theory Blog by email, get a free subscription to Legal Theory Stack.
Lawrence Solum