New Private Law

Credit: Martha Stewart Professor John C. P. Goldberg

HLS Professors John C.P. Goldberg and Henry E. Smith’s “New Private Law” blog launched recently in an effort to expand interest in the notion that traditional interpersonal law deserves a fresh look.

As the two professors describe it, “private law” is actually a well-understood catch-all phrase that encompasses the kinds of law that affect interactions between individuals and firms—contracts, torts, property law, etc.—as opposed to interactions between individuals and government. In coining the phrase “New Private Law,” they are advocating that these areas be examined in a new way and from a different perspective.

Goldberg points out that since the 1930s, legal academia has focused its interpretation of private law on its effect “to achieve some larger public good.” For an example, he said, the traditional view of tort claims has not been so much on how an individual might recover damages, but on the collective impact of such actions on society.

“The idea is that, yes, a plaintiff can get something, but they contribute something to the public at large because they’re really doing the bidding of all of us when they pursue these lawsuits,” he said.

At least in legal academia, he said, the prevailing view of individual tort actions is really an examination of how they make society safer as a whole.

Credit: Phil Farnsworth Professor Henry E. Smith

Smith argues that it’s time for legal academia, at least, to provide a new—and at the same time perhaps more traditional—way of looking at these interactions.

“What we want to do here is put the notion of private law back on the table, to take seriously the structures of private law and to make it a serious subject of study,” Smith said.

He suggested that the examination may well uncover questions about whether or not old concepts might deserve resurrection.

“One of the interesting features about the de-emphasis on private law in American law schools is that whole aspects of private law have really fallen off the radar screen,” he said. “For instance, restitution, substantive equity, areas like that, are now sometimes taught in remedies classes but sometimes not at all. They were—and in actual life really are—an important part of private law, but we don’t cover them very well in law school.”

Although the blog is new, HLS has been devoting attention to the subject of private law since 2010, when Smith launched the Program on the Foundation of Private Law. The Foundation offers a fall workshop in which students hear presentations from outside speakers with drafts in process and write their own papers on selected aspects of private law.

The “New Private Law” blog is the first blogging venture for both Goldberg and Smith. They co-wrote the first post, in which they posited that the blog’s time had come because they had detected growing interest in the subject “and a corresponding resistance to the idea that private law has a particular political valence, or that it is simply a form of public, regulatory law.” Since then, they’ve assembled a group of 14 contributors, all of them professors or otherwise connected to legal academia.

To date, the blog has been attracting more than 1,000 visitors per month, according to Dr. Yonathan Arbel (SJD ’15) , a postdoctoral fellow with the Program on the Foundation of Private Law and one of the blog contributors. Although the blog focuses on American law, Arbel says that the readership is strongly international, with visitors from Australia, China, Israel, South Korea, Russia, and the U.K.

The scope of the posts has been diverse, ranging from “news of the day” analysis to more esoteric writings.

“Blogging is certainly a way of reaching different kinds of audiences and addressing different kinds of issues,” Smith said. “We think this is a subject that’s potentially interesting to the world at large but at least the legal world at large.”

To Goldberg, one of the blog’s goals is to mount an effort to shrink the gap between academic theory and actual practice.

“But whether it will make a dent in the world of traditional opinions and lawyering is hard to know,” he said. “We’ll just have to wait and see.”

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WATCH: Martin Nowak and Michael Winston at the ISNIE Conference

The International Society for New Institutional Economics (ISNIE), soon to be renamed The Society for Institutional and Organizational Economics (SIOE), is hosted its 19th Annual Conference June 18-20, 2015 at Harvard Law School.  The conference website includes details on the program and papers.

The conference was sponsored by Harvard Law School through the Project on the Foundations of Private Law.  In addition to keynotes by Martin Nowak (Harvard) on “The Evolution of Cooperation” and Michael Whinston (MIT) on “Property Rights and the Efficiency of Bargaining,” the program included a number of panels that intersected with private law topics, including agency and fiduciary law, contracts, intellectual property, and property rights.

Visit the conference website for more information.

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A Journalist's Cry For Gun Honesty

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President Ma of Taiwan visits HLS

Ma Ying-jeou S.J.D. ’81, president of Taiwan, made a rare trip abroad in July to visit his alma mater.

On July 11, Harvard for the first time in the century-long history of the Republic of China welcomed a sitting president of Taiwan, hosting President Ma Ying-jeou S.J.D. ’81 for a nostalgic visit to his alma mater.

Because Taiwan and the U.S. do not have formal diplomatic relations, President Ma’s visits to the U.S. consist of stop-overs while transiting to other countries. Ma, who spent four years at Harvard Law School, wanted to revisit his old haunts, including the office where he completed his dissertation on the law of the sea with particular reference to the East China Sea, and the apartment building where he lived as a student nearly 35 years ago, according to Professor William Alford ’77. Alford, who knew Ma when they were both students at HLS and who has stayed in touch since, served as his host at Harvard.

At the Harvard Faculty Club, Professor William Alford ’77, director of the East Asian Legal Studies Program at HLS, presented President Ma with a bound copy of his doctoral thesis, “Trouble over oily waters: legal problems of seabed boundaries and foreign investments in the East China Sea.”

Over the course of a busy day, Ma had lunch at the Harvard Faculty Club with what he called three generations of HLS faculty leaders on East Asia, including Jerome A. Cohen, now at New York University School of Law, who served as director of East Asian Legal Studies at Harvard (EALS) in the 1960s and 70s, Professor Alford, the current director of EALS, and Assistant Professor Mark Wu, whose research focuses on international trade with an emphasis on Asia. They were joined by senior Harvard faculty specializing on China, including former Faculty of Arts and Sciences Dean William Kirby and Harvard School of Public Health Professor William Hsiao, several other scholars of East Asia and dignitaries, including Chairman Raymond Burghardt of the American Institute in Taiwan, previous representatives of the U.S. to Taiwan, and two members of Congress, Blake Farenthold of Texas and Stacey Plaskett of the Virgin Islands, whose districts have substantial ties to Taiwan.

After the lunch, Ma spoke at a small, invitation-only seminar with the scholars and nearly two dozen students on issues including the South China Sea, an area disputed by several jurisdictions, and on cross-Straits relations. Afterward, he enjoyed a tour of the campus and surrounding areas, including a brief visit to a tree near his old, university-owned apartment on Holden Green. There, he invited Shen Lyu-shun, Taiwan’s representative to the U.S., and Professor Alford to hold hands and join him in hugging the old tree, as current residents of the apartment complex looked on in some confusion at the mass of black SUVs and the many different security forces that accompanied the delegation.

Ma, last visited Harvard nine years ago when he was mayor of Taipei, the capital of Taiwan, and more recently he “visited” electronically, engaging in a lengthy question-and-answer session with faculty and students. “The faculty and students asked pretty tough questions, and he was very gracious” Alford said, recalling the event. “It’s a little hard to imagine an American president opening himself up for three hours of questions from foreign academics and students.”

The brief visit to Harvard followed one made by Dean Martha Minow, Alford and a group of alumni from across Asia to see Ma in the summer of 2013. That visit also included a meeting with Annette Hsiu-lien Lu LL.M. ’78, Taiwan’s former vice president and a leader of the opposition Democratic Progressive Party, who spoke last year at HLS.

***

Professor William Alford ’77 shares a laugh with CPBL Commissioner John C.Y. Wu LL.M. ’97 outside Harvard Law School’s Pound Hall.

On July 15, HLS hosted its second visitor from Taiwan in one week, welcoming John C.Y. Wu LL.M. ’97, the commissioner of the Chinese Professional Baseball League (CPBL). Wu’s visit followed a trip to the Major League Baseball’s All-Star Game in Cincinnati, played on July 14, where Wu was the guest of MLB Commissioner Rob Manfred ’83.

According to Professor William Alford ’77, who knew Wu when he was a student at HLS, the visit highlighted the span of Harvard’s “global reach in sports.” During his visit, Wu and Alford exchanged Harvard and CPBL baseball caps, and Wu invited Alford to throw out the first pitch at a baseball game when Alford visits Taiwan next spring.

Wu talks shop with Rob Manfred ’83 at the Major League Baseball’s All-Star Game in Cincinnati. Manfred was elected Commissioner of Major League Baseball in August 2014.

Baseball is one of the most popular sports in Taiwan, and the CPBL is the country’s only professional sports league. The league is made up of four teams, some of which have sent baseball players to the U.S. Eleven players from Taiwan have played Major League Baseball, including Chien-Ming Wang, a pitcher for the Seattle Mariners, and Chin-Feng Chen, once an outfielder for the Los Angeles Dodgers and the first to play for the MLB.

Before becoming commissioner of the CPBL in February, Wu was a politician in Taiwan’s ruling party, the Kuomintang (KMT), and a successful businessman.

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Airing it out: Carfagna discusses legal battle over ‘Deflategate’

Perhaps it’s only fitting that in the dog days of summer, an awful lot of hot air is being expended over the inflation of footballs.

In the case known as “Deflategate,” a federal court judge is presiding over a bizarre dispute between the American sports world’s most profitable entity, the National Football League (NFL), and one of the most successful quarterbacks in its history, Tom Brady. A four-time Super Bowl champion, Brady led the New England Patriots to the title in February.

Credit: Colin McGuire Peter Carfagna ’79, director of the HLS Sports Law Clinic

The NFL has accused Brady of knowing about and perhaps directing efforts by team employees to tamper with air pressure in footballs used by the Patriots in the first half of the American Football Conference championship game last January and of failing to cooperate fully with a league investigation co-led by attorney Ted Wells. Brady and two team staffers have denied taking air out of the balls to gain a competitive advantage against the Patriots’ opponent, the Indianapolis Colts.

Citing a provision in the union’s 2011 collective bargaining agreement (CBA) with the league that concerns conduct that affects game integrity, the NFL suspended Brady without pay for four games. The league expects him to serve that penalty during the upcoming season, which starts Sept. 10. Additionally, the Patriots organization was fined $1 million and lost two draft picks, although it was not accused of wrongdoing.

In May, the National Football League Players Association (NFLPA) appealedthe ruling on Brady’s behalf to NFL Commissioner Roger Goodell, who served as the dispute’s arbitrator. On July 28, Goodell announced that he would uphold Brady’s punishment and filed a complaint in U.S. District Court for the Southern District of New York seeking to have the court confirm his decision.

On Wednesday, the two sides faced off in court for the second time. They are scheduled to reconvene on Aug. 31 unless they reach a settlement before then. U.S. District Judge Richard Berman said Wednesday he intends to rule on the matter before Sept. 4.

Peter Carfagna is a lecturer on law and directs the Sports Law Clinic at Harvard Law School. He spoke with the Gazette about the dispute and what impact the case may have on NFL players and on the league.

GAZETTE: What is the legal framework at issue in this case?

CARFAGNA: It’s been agreed by the union and the league for many, many years that the commissioner would have final, binding arbitration authority — or his designee — unlike the other major leagues, where you go to a neutral arbitrator in these kinds of cases. Battle lines have been drawn. And yet, for each and every subsequent negotiation since the commissioner’s authority was first established, it’s been carried forward … to the point where we are now. … Under Article 46 of the CBA, the commissioner has final and binding authority both at the first level of discipline and also on appeal. That’s the infrastructure, if you will, within which these “conduct detrimental” proceedings get decided.

GAZETTE: Many critics find the NFL’s suspension of Brady unusually harsh, given that he’s accused of rule-breaking that had historically been treated as a minor, fineable infraction. How is this dispute different from prior NFL litigation over player conduct?

CARFAGNA: There are a number of apples-to-apples [comparisons] in football. The most relevant, recent example would be the “Bountygate” proceedings. In that case, Commissioner Goodell on appeal delegated his authority to hear the final, binding arbitration to his predecessor, Commissioner [Paul] Tagliabue, who essentially upheld the commissioner’s authority, but based on the record before him … he reversed Commissioner Goodell as to the player discipline. So that’s the “most like” case here precedentially. “Bountygate” was the classic case of paying players to knock quarterbacks out, to knock other players out. [New Orleans Saints linebacker Jonathan] Vilma filed an individual suit against the commissioner, which was dismissed.

More recently is the four-game suspension for the general manager of the Cleveland Browns, Ray Farmer, which was cited in Commissioner Goodell’s final arbitration order. Ray Farmer was suspended four games, and heavy fines were imposed against the team for illegal texting to sideline coaches during a game. Four games is the normal suspension for performance-enhancing drug use. The commissioner cites that in his final arbitration order. They say that’s similar: Using a performance-enhancing drug is very similar because it gives you an unfair competitive advantage, and if you’re caught, you get four games. So that’s why we’ve got apples-to-apples here, because Brady allegedly had an unfair competitive advantage by using the deflated balls.

GAZETTE: The NFL argues that Goodell has very wide latitude in issuing punishments to players and that, as the arbitrator in this matter, the court should — and historically does — afford him great deference. The NFLPA says the commissioner’s decision to uphold Brady’s suspension resulted from a fundamentally unfair process that relied on inferences by investigators, not direct evidence. Further, union attorneys maintain that he is being punished for an act the NFL has never punished any player for — allegedly knowing about a rules violation committed by others — and one that players were never informed could be punishable. Further, the union argues that in prior instances where players were found to have not cooperated with a league investigation, those players were fined, as per the CBA, not suspended. How do you assess the quality of these two arguments? Who has the better case and why?

CARFAGNA: By signing the uniform player contract, which all NFL players do, including Mr. Brady, you agree to be bound by the CBA and its grievance arbitration procedures. That incorporates, by reference, an agreement to abide by Article 46, which is the “integrity of the game” and “conduct detrimental” [clause]. So I think from a contractual standpoint, in the final award, Commissioner Goodell makes a very strong case that there’s no surprise here, that every player knows that when he signs the individual contract that he’s bound by these provisions.

GAZETTE: So you don’t buy the NFLPA’s argument that while Brady agreed to Goodell’s wide-ranging final authority and to serve as the arbitrator, he didn’t sign away his right to expect a reasonably fair process?

CARFAGNA: Every player, not just Mr. Brady, every player agrees to this process. If the union had wanted a different process, they could have negotiated for same at the last CBA, and they didn’t. So it’s kind of after the fact … to say “we don’t like this process.” Maybe at the next CBA then, you say … “we want a neutral arbitrator.” The other leagues have that, but this CBA with the NFL does not provide for that. The union should renegotiate that Article 46 procedure if it really wants to do away with it next time. … And sure, [Brady attorney] Jeff Kessler makes every argument that any good outside lawyer would make, but they’re after-the-fact arguments.

We have to distinguish between on-field and off-field [behavior]. The personal conduct policy, that’s for off-field. That’s Adrian Peterson, that’s Ray Rice. [Peterson was indicted on child-abuse charges, Rice was indicted on charges of assault. Both players were disciplined.]

GAZETTE: And that’s not part of the CBA.

CARFAGNA: Totally different. They were disciplined under the personal-conduct policy. Now this “law of the shop” business that they’re citing in Brady comes out of Judge [David] Doty’s opinion, in the appeal to him in federal court in Minnesota in the Adrian Peterson case. … So they’re cropping language from an inapposite case, if you will, cropping language from Judge Doty in a personal-conduct policy appeal and overlaying it … by putting it into an on-field misconduct case.

GAZETTE: The NFLPA claims the fact-finding in this case was prejudicial against Brady. Even if the judge feels the case lacks merit, can he act on those grounds, or must he rule only on whether the process the NFL followed was conducted properly?

CARFAGNA: Each circuit has standards, and the Supreme Court has standards for vacating an arbitration award. “Evident partiality” is one of the bases. It’s very rare. There’s a lot of Supreme Court precedents: the Steelworkers Trilogy, Steve Garvey …. Despite the process in his arbitration being outrageous, the court wouldn’t touch the arbitration award. The NFL cites this in its papers. The courts generally say, “We’ll defer because the union has agreed to final arbitration. We are not going to retry the case unless there’s egregious abuse of discretion.” [The NFLPA] may well prevail. They’re doing all the right things. But the NFL, if it goes to final order and they don’t get upheld, they will further appeal it. No doubt about it.

GAZETTE: Why is that?

CARFAGNA: If it’s vacated, they almost have to. Because in Peterson, you’re left with no choice because of the sanctity of final, binding arbitration. I can’t speak for them, but I would assume they would really have to because … that’s really a sacrosanct area that would be invaded by a vacatur [a vacating order].

GAZETTE: Besides upholding or vacating Goodell’s decision, are there other options available to the judge, and what do you suspect he might do?

CARFAGNA: He’s got his magistrate heavily involved in settlement. Typical shuttle diplomacy, certainly in a case like this, [is], ‘Look, you guys don’t want to go because you’re not going to like the final order.’ He’ll be saying that to both sides. It’s wonderful, adept work by a very experienced, settling judge. But so far, neither side appears to be budging.

GAZETTE: Are you surprised this matter has gone this far without resolution?

CARFAGNA: No, not at all. I would not be surprised if they found room in the middle to settle. I am a bit surprised they haven’t been able to do that until now. Some form of suspension — one or two games — some form of admission of culpability. That’s a common middle ground that the NFL, I think, would be well advised to [take]. … Then you put that against one of the greatest players in the history of the game admitting to a violation of conduct detrimental, admitting to a violation of the integrity of the game. That would tarnish his reputation in ways unimaginable. If you’re on his side, you’ve got to be saying, “I will not agree to the findings in the Wells Report; I will not agree that I intentionally violated Article 46.” I think that’s why we’re many months into this, because it’s almost an intractable push me/pull you situation. … If I were advising him, I would say “Don’t lie, but if you didn’t do it, don’t settle.”

GAZETTE: How would a ruling that upholds Brady’s suspension affect other NFL players? And if the judge vacates the arbitration decision, what does that do to the commissioner’s authority over player conduct going forward?

CARFAGNA: Every player now is clearly on notice. Every player now knows, if they didn’t before, that signing that uniform player contract has meaning. That certainly has been brought home in this case loud and clear: That by signing that contract, you’re agreeing to the terms of the CBA, which includes Article 46, which includes final, binding arbitration by the commissioner.

On the league side, because it’s so important, it’s a bedrock principle for labor law generally, that final binding arbitration, once it’s agreed to by the union, doesn’t get overturned by federal court. I think they have to protect that sacred ground.

GAZETTE: Does this case have any potential ramifications for other sports leagues or groups that use collective bargaining agreements like labor unions?

CARFAGNA: No, not particularly. You see an erosion of the commissioner’s authority in the NFL through this constant litigation, constant challenging. But you don’t see that in the other leagues … because everybody agrees the independent arbitrator has the final say in the other leagues. In baseball, that’s how they got to free agency.

GAZETTE: Is there anything instructive you think your students should take away from this dispute?

CARFAGNA: Oh, yeah. I already have the hypo[thetical] in mind: “Write the order that you believe Judge Berman should write if there’s not a settlement and support it with the most persuasive precedent on each side.” We’ll do a little moot court thing a few weeks from now, and we’ll decide. We’ll have half the class do the NFLPA side and half the class do the NFL side, and we’ll vote, and then we’ll take it up on appeal. That’s how I teach all my classes, so I’m looking forward to seeing how the students come out.

This article originally appeared in the Harvard Gazette on August 20, 2015. It was edited by the publication for length and clarity.

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Marcia Sells to join HLS as Dean of Students

Marcia Sells will join Harvard Law School as the new Dean of Students on September 21.

Martha Minow, Dean of Harvard Law School, has announced that Marcia Sells will join the school as the new Dean of Students on September 21.

Sells is coming to HLS from Columbia University, where she previously served as Dean of Students at the Law School, and currently serves as both Associate Dean for Outreach & Education in the School of the Arts and Associate Vice President for Program Development and Initiatives in the Office of Government and Community Affairs.

“After a national search, attracting immensely talented candidates, Marcia stood out because of her deep and diverse experiences in higher education, in law, in community relations, and in building capacity for individuals and organizations and her demonstrated vision and accomplishments,” Minow said. “She is warm and wise; she will be an invaluable resource for our students and our entire community. I very much look forward to her leadership here.”

Sells received her J.D. from Columbia, and her BA from Barnard. Prior to returning to Columbia in 2002, she held a variety of high-level positions in academia, the private sector and public service, including: Vice President for Employee and Organizational Development at Reuters America; Vice President for Organizational Development & Human Resources and Vice President for Player Education and Development at the National Basketball Association; and Assistant District Attorney for the Kings County District Attorney’s Office.

“It is an amazing opportunity to work with Dean Minow and Harvard Law School faculty and administrators as Dean of Students,” Sells said. “This position offers a chance to connect with future members of the legal profession at the beginning of their journey, and that is engaging and meaningful work at an institution that has always been at the heart of shaping legal education. I am honored to be a part of the Harvard community.”

Before her legal and academic career, she trained as a ballet dancer in her hometown of Cincinnati, Ohio. She was a member of the Cincinnati Ballet Company until Arthur Mitchell persuaded her to move to New York and eventually become part of the Dance Theatre of Harlem.

Sells is a member of the New York Bar and a retired member of the Connecticut Bar. She has been a Member of the New York State Governor’s Task Force on Rape and Child Abuse and a Member of the Mayor’s Judicial Advisory Committee. She received the “Woman of Power and Influence” Award from the National Organization of Women, and Black Star Magazine honored her as a community leader. She has also authored an essay in the book Public Nature of Private Violence and a book on legal rights of domestic violence victims with Judith Avner, then-Commissioner of the Women’s Rights Division under Governor Mario Cuomo, titled Women Know Your Rights.

Sells has also served on the boards of Community Impact of Columbia University, Manhattan Legal Services, YWCA of New York, the National Association of Black Artists, Community Works of New York, Coalition for the Homeless, and Sugar Hill Museum for Art & Storytelling.

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A Case With Teeth? Federal Circuit To Review ITC Jurisdiction Over Digital 'Articles'

Next Tuesday, August 11, the U.S. Court of Appeals for the Federal Circuit will hear oral argument in ClearCorrect Operating, LLC v. International Trade Commission, a case that nominally involves a cease-and-desist order the International Trade Commission (ITC) imposed on a data file that contained a digital model of crooked [...]