Document Type

Article

Publication Date

2019

Abstract

This Essay is an attempt to describe the basis and consequences of the disconnect between private law and legislation, both for private law theorizing and legal thinking more generally. It does so by focusing on “private law statutes,” legislation that creates or modifies rights and obligations between parties in their private capacities. Private law statutes do more than merely create private causes of action. While they create private causes, they do so on the basis of principles that are specific to the horizontal interaction between parties, rather than entirely for public-regarding policy reasons. While statutes in the areas traditionally identified as private law remain obvious examples, the category extends to altogether new domains as well. The Essay contrasts courts' treatment of private law statutes in the U.S. and U.K., and argues that theories of statutory interpretation would do well to identify the unique analytical and normative principles that undergird private law statutes.

Publication Citation

Southern California Law Review, Vol. 92, 2019, Forthcoming.

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