Working Paper Series

Villanova University Charles Widger School of Law Year 2008

Public Law, Private Law, and Legal

Science
Chaim Saiman
1567, [email protected]

This paper is posted at Villanova University Charles Widger School of Law Digital Repository.
http://digitalcommons.law.villanova.edu/wps/art121
2009] PUBLIC LAW, PRIVATE LAW AND LEGAL SCIENCE 691

CHAIM SAIMAN

Public Law, Private Law, and Legal Science

This essay explores the historical and conceptual connections

between private law and nineteenth century classical legal science
from the perspective of German, American, and Jewish law. In each
context, legal science flourished when scholars examined the confined
doctrines traditional to private law, but fell apart when applied to
public, administrative and regulatory law. Moving to the
contemporary context, while traditional private law scholarship
retains a prominent position in German law and academia,
American law has increasingly shifted its focus from the language of
substantive private law to a legal regime centered on public and
procedural law. The essay concludes by raising skepticism over recent
calls to reinvigorate the Euro-American dialogue by focusing on
traditional private law and scholarship.

I. INTRODUCTION
Professor Haferkamps paper concisely details the rise and fall
of an autonomous legal science in Germany. According to Professor
Haferkamp, the beginning of the nineteenth century saw the gradual
concentration of power in the hands of the state and the creation of
public law, which in turn necessitated the demarcation of a distinct
field of private law. By the end of the century, however, many lost
confidence in the view that private law is distinct from the state and
society. In turn, this led to the demise of the autonomous conception
of private law.1

Assistant Professor, Villanova Law School. This paper is a slightly more formal
version of the comments presented at the Private Law Beyond the State conference in
Hamburg Germany, July 2007. The casual tone and light notation reflects the oral
origin of these remarks. I would like to thank Ralf Michaels and Matthias Reimann
for their helpful reactions to these comments.
1. See Hans-Peter Haferkamp, The Science of Private Law and the State in

691
692 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56

The traditional narrative sees the creation of an autonomous

private law as the work of the nineteenth-century German
academics. Professor Haferkamp argues however, that this account
undervalues the contributions of the nineteenth-century German
judiciary. His paper thus moves our understanding of legal science
away from the stereotypical emphasis on the jurist, and closer to the
common laws model of legal transformation via the judiciary.2
There is a Talmudic dictum warning a student from speaking in
front of his teachers.3 Since the little I know about nineteenth
century German law was taught to me by scholars present in this
room, I will heed the Talmuds advice, and leave the discussion of the
German legal science to Professor Haferkamp and the assembled
experts. I thus direct my remarks to a discussion of: (i) public versus
private law from the American perspective, (ii) an analysis of judicial
law versus juristic law from the perspective of Jewish law, and
finally (iii) an examination of the relationship between private law
and legal science in each setting. Pulling these observations
together, I conclude by questioning the viability of one of the goals of
this conferencethe creation of a transatlantic discourse anchored
in private law scholarship.

II. TRANSITIONING PRIVATE INTO PUBLIC LAW

Despite more than a century of critique and deconstruction, the

distinction between private and public law continues to influence the
structure of legal thought in the civil law world, and of late, these
categories have even migrated to common law systems.4 Here, I join
the voices of Professors Jansen and Michaels (and Merryman) to
note that the contemporary American lawyer has trouble
understanding what German scholars mean by private law.5 For
example, in U.S. discourse, the substantive area governing the
states ability to interfere with private property or contractual rights
goes under the heading of due process and takings law, which are
conceptualized as public rather than private law. In the American

Nineteenth Century Germany, 56 AM. J. OF COMP. LAW 667 (2008).

2. See, e.g., Regina Ogorek, Inconsistencies and Consistencies in 19th Century
Legal Theory, in CRITICAL LEGAL THOUGHT: AN AMERICAN GERMAN DEBATE
(Christian Joerges & David Trubek eds., 1989).
3. See Babylonian Talmud, Eruvin 63a.
4. See, e.g., ENGLISH PRIVATE LAW (Peter Birks ed., 2000). This two-volume
treatise put out by Oxfords leading legal scholars has a distinctly civilian
organization comprising of: (i) the law of persons, (ii) the law of property, (iii) the law
of obligations, and (iv) litigation; see also Nicholas Kasirer, English Private Law,
Outside-in OXFORD U. COMM. L. J. 249 (2003).
5. See Ralf Michaels & Nils Jansen, Private Law Beyond the State?
Europeanization, Globalization, Privatization 54 AM. J. COMP. LAW 843 (2006). See
also John Merryman, The Public Law-Private Law Distinction in European and
American Law 17 J. PUB. L. 3 (1968).
2009] PUBLIC LAW, PRIVATE LAW AND LEGAL SCIENCE 693

understanding, the Constitutions Bill of Rights, rather than any

body of substantive private law, is what prevents the state from
encroaching on the private sphere. Moreover, on some readings of
the Constitution, the entire reason for having a Constitution and
public law is to keep the state in check vis--vis the private property
rights of the citizenry. 6
Beyond this structural difference, however, over the past
decades, there has been a considerable shift in the interaction
between public and private law in the United States. For example,
officiallyas a matter of blackletter doctrineto raise a due process
claim against the government, one must begin by identifying a right
to property as a matter of state common (private) law.7 The Supreme
Court continues to use this doctrinal model in cases where the
alleged private law right fits rather neatly into traditional private
law categories.8 However, when the cases get harder, i.e., when the
alleged right fits less comfortably into the traditional framework of
private law, the Court abandons the private law discourse and
analyzes the question as a matter of federal constitutional public
law.9

6. See Bernard H. Siegan, Protecting Economic Liberties, 6 CHAP. L. REV. 43, 64

(2003). ([A] major, if not the major reason that led to the framing and ratification of
the United States Constitution, was to protect economic freedom.); see also RICHARD
EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985).
7. See Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972) (holding in the due
process context that Property interests, of course, are not created by the
Constitution. Rather they are created and their dimensions are defined by existing
rules or understandings that stem from an independent source such as state law-
rules . . .); Logan v. Zimmerman Brush Co., 455 U.S. 422, 430 ([t]he hallmark of
property, the Court has emphasized is an individual entitlement grounded in state
law); Phillips v. Wash. Legal Found, 524 U.S. 156, 165-68 (1998) (stressing in the
takings context that the Constitution protects traditional property law principles
that are firmly embedded in the common law of the various States.); see also
Thomas Merrill, The Landscape of Constitutional Property, 86 VA. L. REV. 885, 897-
98 (2000).
8. See Phillips, 524 U.S. at164 n.4 (1998), (addressing whether the interest
earned on client trust funds held by lawyers in IOLTA accounts [is] a property
interest of the client or lawyer.).
9. See Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970) (holding, in the context of
whether plaintiff had a right to public assistance monies, that [t]he extent to which
procedural due process must be afforded the recipient is influenced by the extent to
which he may be condemned to suffer grievous loss . . . and depends upon whether
the recipients interest in avoiding that loss outweighs the governmental interest in
summary adjudication.); Bell v. Burson, 402 U.S. 535, 535-41(1971) (seemingly
skipping the property inquiry in a due process challenge to the State of Georgias
decision to suspend a drivers license); Memphis Light, Gas & Water Div. v. Craft,
436 U.S. 1, 9 (1978) ([a]lthough the underlying substantive interest is created by an
independent source such as state law, federal constitutional law determines whether
that interest rises to the level of a legitimate claim of entitlement protected by the
Due Process Clause.); Coll. Sav. Bank v. Florida Prepaid Postsecondary Educ.
Expense Bd., 527 U.S. 666, 673 (1999) (adopting an avowedly federal definition of
what constitutes property for due process purposes in the context deciding whether
plaintiff maintained a property interest in a false advertising claim: The hallmark of
a protected property interest is the right to exclude others.); Town of Castle Rock,
694 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56

The transition from traditionally private/common law to public

law modes of reasoning has been a major theme in twentieth-century
American law. While the private law elements of the common law
are still around, their prestige has dwindled considerably and courts
are reluctant to delve deeply into their doctrines to solve novel
cases.10 As with the due process example, the contemporary vogue is
to frame the case as raising either procedural, statutory, or public
law issues. Professor Haferkamp touches on an example from the
close of the nineteenth century,11 and this phenomenon has become
more pervasive over the course of the twentieth. The reasons are
complex and rest on the confluence of legal realism, the relegation of
common law to the states in Erie v. Tompkins,12 the rise of the
administrative state, the increase in the power of the federal
government vis--vis the states, the Warren Courts image of
constitutionalism and the conservative reaction to it, as well as
significant changes in the goals of legal education. But while the
causes are complex, the effects are quite stark. In a number of ways,
the following examples highlight the extent to which American legal
identity has shifted away from traditional conceptions of private law
and scholarship.
1. An examination of American law between 1940 and 1970
would have revealed that Karl Llewellyn and Grant Gilmore were
widely considered amongst the leading legal theorists of their
respective generations. Gilmores The Ages of American Law13 and
The Death of Contract14 are important landmarks in the narrative of
American law, and Llewellyn is justly considered a principal
architect of modern American legal thought.15 In light of these

Colo. v. Gonzales, 545 U.S. 748, 761-69 (2005) (fully enmeshing federal constitutional
doctrines and policies into the inquiry of whether the State of Colorado meant to
create a property interest in a court-mandated restraining order).
10. See Andrew Kull, The Simplification of Private Law, 51 J. LEGAL EDUC. 284
(2001); Chaim Saiman, Restitution and the Production of Legal Doctrine, 63 WASH. &
LEE L. REV. (forthcoming 2008).
11. Haferkamp, supra note 1.
12. Erie v. Tompkins, 304 U.S. 64 (1938).
13. GRANT GILMORE, THE AGES OF AMERICAN LAW (1977).
14. GRANT GILMORE, THE DEATH OF CONTRACT (1974).
15. Article 2 of the U.C.C. has had a major impact of the texture and structure of
American contract law, even in contracts not formally governed by the U.C.C. In a
different realm, Llewellyns Remarks on the Theory of Appellate Decision and the
Rules or Canons About How Statutes Are to Be Construed, 3 VAND. L. REV. 395
(1950), has been called, in the words of a leading scholar of statutory interpretation,
one of the most influential realist works of the last century which largely
persuaded two generations of academics that the canons of construction were not to
be taken seriously. See John F. Manning, Legal Realism & the Canons Revival, 5
THE GREEN BAG 2d 283, 283-84 (2002). The article has been cited over 550 times in
American law journals and was even the subject of a symposium in the Vanderbilt
Law Review. See Symposium: A Reevaluation of the Canons of Statutory
Interpretation, 45 VAND. L. REV. 529 (1992). More recently Llewellyn was canonized
by Professors David Kennedy and William Fischer in DAVID KENNEDY & WILLIAM
FISCHER III, THE CANON OF AMERICAN LEGAL THOUGHT 131-61 (2006) (collection
2009] PUBLIC LAW, PRIVATE LAW AND LEGAL SCIENCE 695

accomplishments, it is easy to forget that both men were deeply

engaged in the dark and technical corners of commercial law, and in
fact were the drafters of Articles 2 and 9 of the U.C.C. respectively.
In todays environment, a scholar choosing to work in commercial
law sends a strong signal to his academic colleagues that he aspires
to be a legal technician rather than a high-end academic theorist.16
And while there might be spirited debate regarding who should be
considered this generations leading theorists, few nominations
would come from the scholars involved in revisions to U.C.C. Articles
2 and 9. Undoubtedly, the current holder of the title leading legal
theorist works in a specialized area of Constitutional law.
2. The shift away from private law is similarly evident when
examining the heroes of the American bench. The traditional list
would invariably include Justices Kent, Shaw, Story, Cardozo, and
Holmes; judges who built their reputations around transforming
traditional common law principles to new American settings.17 As
the twentieth century progressed, however, the popular image of the
judge shifted considerably. The new judicial heroes (or villains) are
the makers of twentieth century constitutional law: Justices Warren,
Brennan, Marshall, Rehnquist, Scalia, and Thomas.18
3. Finally, transatlantic private law discourse is difficult
because there is deep confusion as to what, exactly, is the subject of
the conversation. As Professors Jansen and Michaels mentioned,
private ordering (a political/ideological commitment to free markets
and limited government intervention), rather than private law (a set
of substantive doctrines), captures the imagination of American
scholars. In a similar vein, recent conversations with American
colleagues regarding the central issues in American private law
produced the following themes: (i) tort reform (curbing liability of
large corporations at the hands of state court juries), (ii) bankruptcy
reform (making debt collection easier for banks and credit card
companies), (iii) issues regarding the scope and distribution of
intellectual property rights, (iv) post-Enron questions of corporate

includes Llewellyns Some Realism about Realism, 44 HARV. L. REV. 1222 (1931)).
16. See Larry Garvin, The Strange Death of Academic Commercial Law, 68 OHIO
ST. L.J. 403 (2007).
17. See GEORGE EDWARD WHITE, THE AMERICAN JUDICIAL TRADITION: PROFILES
OF LEADING AMERICAN JUDGES (1988).
18. For the benefit of the German readers: Chief Justice Earl Warren presided
over the Supreme Court from 1953-69. The Warren court significantly expanded the
scope of Constitutional rights that citizens could assert against the government.
Associate Justices William Brennan and Thurgood Marshall were the most liberal
members of the Warren Court. By contrast, Chief Justice William Rehnquist (1986-
2005) presided over a far more conservative court that rejected the Warren Courts
legacy of social transformation through constitutional law. Associate Justices
Antonin Scalia and Clarence Thomas are the leading exponents of originalism and
textualisminterpretive methods designed to constrain the legislation from the
bench that has come to typify the Warren Court.
.
696 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56

governance, and (v) the advisability of setting limits on executive

compensation.
Whatever the merits of these proposals, these issues are private
only in the most nominal sense of the termthey govern
relationships between non-governmental entities. On the whole,
however, they are conceptualized as questions of public policy that
concern the administration of the national economy writ large. To be
sure, conservative and liberal scholars vigorously debate the
appropriate regulatory response to each issue. But the idea that
legal questions can be resolved on the basis of a confined set of
conceptually-related doctrines, or via application of the principles of
corrective justice, is a position that few American liberals or
conservatives are willing to promote.19
For these reasons I have argued that Peter Birks, a leading
figure of Anglo-Continental private law thought in the late twentieth
century, would have had difficulty securing tenure at even a third-
tier American law school. This is true not only for Birks himself, but
for any scholar whose approach to private law is predicated on the
assumption that private law can be reduced to a confined set of legal
doctrines where taxonomic classification does the work of solving the
laws hard questions. For example, in discussing when a claimant
can pull certain assets out of a bankrupt estate, Birks wrote:
Some legal concepts [property] ought never to be
deconstructed . . . .

19. For example, both the conservative and liberal wings of the U.S. Supreme
Court maintain a thoroughly instrumentalist understanding of tort law that sees no
differences between a common law tort action and an act of positive regulation
enacted by the legislature. The Courts conservatives argued that [state] regulation
can be as effectively exerted through an award of damages as through some form of
preventive relief. The obligation to pay compensation can be, indeed is designed to
be, a potent method of governing conduct and controlling policy. Medtronic, Inc. v.
Lohr, 518 U.S. 470, 510 (1996) (OConnor, J., joined by Rehnquist, C.J., and Scalia
and Thomas, J.J., concurring in part and dissenting in part) (quoting San Diego
Building Trades Council v. Gaimon, 359 U.S. 236, 247 (1959)). Similarly, the more
liberal Justice Breyer maintains that distinguishing between private law tort claims
and positive legislation would grant greater power . . . to a single state jury than to
state officials acting through state administrative or legislative lawmaking
processes. Id. at 504. See also Geier v. Am. Honda Motor Co., 529 U.S. 861, 871-72
(2000) (Justice Breyer, writing for the Court, rejected the distinction between
common law tort actions and legislative regulatory regimes).
These statements contrast with the more traditional understanding that
distinguished between common law damages actions and positive enactments such
as statutes and regulations. In articulating this view, Justice Blackmun based
himself on a corrective justice theory that contrasts private law with positive acts of
state regulation. (Tort law has an entirely separate functioncompensating
victimsthat sets it apart from direct forms of regulation.) See Cipollone v. Liggett
Group, Inc., 505 U.S. 504, 535-38 (1992) (Blackmun, J., concurring). See more
generally Michael P. Moreland, Tort Reform by Regulation, 1 J. HEALTH & LIFE
SCIENCES L. 39 (2007).
2009] PUBLIC LAW, PRIVATE LAW AND LEGAL SCIENCE 697

The question whether a claim deserves priority in

insolvency is an impossible question. By contrast, the
questions whether the plaintiff has a proprietary interest,
and, if so, from what moment that interest takes its
priority, are technical conceptual questions, which a lawyer
can hope to answer.

. . . Lawyers have no special competence in distributive

justice. They cannot be expected to say who deserves what.
But, given a decent law library and some time to do the
work, a lawyer can be expected to say . . . whether on given
facts a proprietary interest has arisen, and, if so, precisely
of what kind.20
I can hardly imagine a statement more inimical to the entire
thrust of twentieth-century American jurisprudence than these lines
penned by Birks. This is because the defining feature of American
legal thought is that traditional legal analysis is usually
indeterminate and that outcomes could no longer be legitimated via
the technical and conceptual analysis of legal rules.21 For this
reason, when I gave presentations at a number of U.S. law schools
and put these statements of Birks on a power-point slide, the room
quickly fell silent, save for the gasps of shock from the assembled
professors. American academics literally could not believe that one of
the most renowned figures of the English legal academy was so
blatantly oblivious to the ideas that we have insisted on for over
seventy years.22

III. JEWISH LEGAL SCIENCE

Like American and German law, Jewish law also saw the
flowering of legal science during the nineteenth century.23 However,
because nineteenth-century Jews had neither a state nor politics in
the usual sense of the term, the traditional explanation for the
emergence of legal sciencethe separation of law from politicsdoes
not directly apply to the Jewish experience. Moreover, the mutual

20. Peter Birks, The End of the Remedial Constructive Trust? 12 TR. L. INTL
202, 214-15 (1998).
21. For a comparative perspective, see James Maxeiner, Legal Indeterminacy
Made in America: U.S. Legal Methods and the Rule of Law, 41 VAL. U. L. REV. 517
(2006).
22. See Chaim Saiman, Restitution in America: Why the US Refuses to Join the
Global Restitution Party, 28 OXFORD J. LEG. STUD. 99 (2008); For a comparison of
American and German perspectives, see Kristoffel Grechenig & Martin Gelter, The
Trasnatlantic Divergence in Legal Thought: American Law and Economics vs.
German Doctrinalism, available at ssrn.com/abstract=1019437.
23. See Chaim Saiman, Legal Theology: The Turn To Conceptualism in
Nineteenth Century Jewish Law, 21 J. L. & RELIGION 39-42, 94-100 (2005)
[hereinafter Saiman, Legal Theology].
698 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56

hostility between the early Zionists and the traditional Jewish

scholars meant that the rabbinic tradition would play a relatively
minor role in the nascent phases of Jewish statehood. Nevertheless,
expanding the definition of politics to encompass non-state social
movements reveals that Jewish legal science performed many of the
same functions as its German and American counterparts. In each
case, scholars sought to chisel out a block of law untainted by the
influences of society and polity.
Jewish legal science was a response to the threat represented by
Reform Judaism or its academic manifestation, Wissenschaft des
Judentums. The Wissenschaft movement employed nineteenth-
century German historical and text-critical methods to contextualize
and demystify the formation of classical Judaisms core texts. While
this project had its academic ends, its political goals were to enable
Jewish assimilation into European society. These writers claimed
that Jewish law and identity were far more contingent and
malleable than assumed by traditional theology. The reformers
argued that just as Jewish civilization had continually adapted to
social and material conditions throughout the ages, the same should
hold true as Jews moved out of the ghetto and into mainstream
European society. 24
Against this backdrop, traditionalist legal scholars, known as
Briskers, offered a version of Jewish law that was both apolitical
and trans- or meta-historical. In terms of Western movements, this
school bears similarity to the seventeenth-century view of the
common law promulgated by Lord Edward Coke,25 and the mid
nineteenth-century form of German law that has come to be known
as the conceptual school (Begriffsjurisprudenz). The Briskers
denied that Jewish law responded to shifting understandings of
human nature and society, and claimed instead that Jewish law was
based on immutable legal principles that were independent of
contingent social forces. The scientific approach, according to the
Briskers, revealed that apparent changes to the legal order were
predicated on preexisting legal concepts embedded within classical
rabbinic texts, simply awaiting discovery by Jewish legal scientists.

IV. JURISTS LAW VS. JUDGES LAW

Professor Haferkamps paper calls attention to the different
ways that judges rather than jurists employed the concepts of legal
science. Though Jewish law maintained a distinction between
learned law (torah lishma) and the law that actually gets applied

24. Id.
25. See Gerald Postema, Classical Common Law Jurisprudence, 2 OXFORD U.
COMM. L. J. 155, 155-57, 169-76 (2002).
2009] PUBLIC LAW, PRIVATE LAW AND LEGAL SCIENCE 699

(halakha lemaaseh) since late antiquity,26 this distinction became

more important over the course of the nineteenth century, when the
role of the academic legal scholar was increasingly separated from
judicial authority. While academic jurists generally focused on
training future scholars and writing Talmudic commentaries, the
work of rendering decisions was typically assumed by a posek, a
scholar who became known as a decisor of Jewish law. (The very
strangeness of the word decisor underscores the difficulty of
comparing Jewish law to national law.) Somewhat paradoxically, the
popular conception of Jewish law was driven by the learned law of
the jurists rather than the decisions produced by the judge/posek. 27
In the Jewish context, the distinction between scholar and judge
enabled legal scientists to present the law as an autonomous
discipline. The scientists work stressed the conceptual unity and
purity of a legal system untouched by the vicissitudes of the ages
and untangled in what Langdell famously called the skein of human
affairs.28 It was this autonomous image of Jewish law that was
espoused in public and used to refute the claims of the Jewish
reformers. Invariably, however, Jewish law had to come to terms
with the issues of the day and address what we (but not they) call
the social. Here, the system reverted to a judge/posek who could
quietly contravene the official jurist-law by finding a localized
exception that applied only to the unique facts of a specific case. The
work of the judge/posek allowed the law to change in practice even as
the juristic discourse reaffirmed the immutable nature of the ancient
principles of Jewish law.

V. LEGAL SCIENCE AND PRIVATE LAW

In light of the Jewish and American experiences, Professor
Haferkamps paper raises the question: to what extent the emerging
prominence and independence of the German judiciary relieved the
academic jurists from having to accommodate social considerations
into their vision of law? In short, to what extent did judicial
accommodationism enable academics to adopt their pedantic view of
the Pandects?
A number of conference papers have already alluded to the
connection between the legal science and private law, and if we are
to follow Professor Gordleys suggestion, there is a deep connection
between the death of traditional legal science and the death of
private law.29 Moreover, in each of the German, American, and

26. See e.g., HANINA BEN-MENAHEM, JUDICIAL DEVIATION IN TALMUDIC LAW

(1991).
27. See Saiman, Legal Theology, supra note 23.
28. See CHRISTOPHER COLUMBUS LANGDELL, SELECTION OF CASES ON THE LAW
OF CONTRACTS viii (2d ed., Little, Brown & Co. 1879).
29. James Gordley, PLEASE INSERT TITLE 56 AM. J. COMP. L. 641 (2008).
700 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56

Jewish contexts, traditional legal science proves most useful when

addressing core private law doctrines of contract, tort, agency, and
property, but tends to run out of steam when confronting social and
political considerations that do not easily conform to doctrinal-
analytic categories.
In terms of German law, the story has been told by many of the
papers and needs no further elaboration. I would merely reiterate
that the traditional, and to some degree ongoing, assumption is that
core areas of private law are like the primary colors on an artists
palatethe basic doctrines from which more complex forms are
derived.30 Therefore, one must have a firm mastery of the basics
before proceeding to more complex forms of contract and transaction.
Regarding the American common law, it is not surprising that
the heyday of legal science in the late nineteenth century saw to it
that contract, tort, and property dominated the first-year
curriculum.31 Conversely, more recent skepticism about the existence
of core private law doctrines has lead to these subjects gradually
receding from first-year curriculum.32
Perhaps the most dramatic illustration of the relationship
between legal science and private law comes from the debates
surrounding the formation of the University of Chicagos law school
at the turn of the twentieth century. The Chicagoans sought to
borrow one of the leading legal scientists, Professor J.H. Beale of
Harvard, to serve as the inaugural dean of the new law school.
Initially, there was considerable excitement over the idea of
establish[ing] a school on the model of Harvard.33 However, when

30. See Nicholas Kasirer, The Common Core of European Private Law in Boxes
and Bundles, 3 EUROPEAN REVIEW OF PRIVATE LAW 417 (2003) (discussing the use of
visual imagery in comparative law).
31. For example, when Harvards three-year curriculum was adopted in 1916,
the law school offered twelve (12) credits of Property, eight (8) credits of Equity, six
(6) credits of Contracts, seven (7) credits of Torts, and four (4) credit classes in: (i)
Agency, (ii) Corporations, (iii) Partnerships, (iv) Shipping, (v) Sales, (vi) Bills of
Exchange, (vii) Trusts, and (viii) Mortgages and Suretyships. Incidentally, the only
public law courses that were offered were four (4) credits of Constitutional Law and
two (2) credits of Municipal Corporations. Interestingly, in 1880, Constitutional law
only merited one credit and before that, it did not even merit its own course, as it
was taught as Constitutional Law and Shipping. See John Reed, Training for the
Public Profession of the Law 458 (1921); E. Gordon Gee & Donald W. Jackson,
Following the Leader: The Unexamined Consensus of Law School Curricula 20
(1975); see also Robert Gordon, The Geologic Strata of the Law School Curriculum, 60
VAND. L. R. 339 (2007).
32. In 2006, Harvard Law School initiated a major overhaul of its first year
curriculum which introduces new mandatory first-year courses by devoting fewer
class hours the traditional first-year curriculum. See Harvard faculty unanimously
approves first-year curricular reform, available at
http://www.law.harvard.edu/news/2006/10/06_curriculum.php (last visited Aug. 21,
2007). For the 2007-08 academic year, contracts, torts, and property were reduced to
four credits each. See also Edward Rubin, Whats Wrong with Langdells Method and
What to Do About It, 60 VAND. L. REV. 609 (2007).
33. FRANK ELLSWORTH, LAW ON THE MIDWAY 68 (1977). See also Thomas Grey,
2009] PUBLIC LAW, PRIVATE LAW AND LEGAL SCIENCE 701

Harvards traditionalists heard that the proposed curriculum

included not only contracts, torts, property, and agency, but also
international law, administrative law, public officers, municipal
corporations, and federal practice, the atmosphere cooled
considerably. Beale, an advocate of what he called pure law, saw
the differences between Harvard and Chicago as so fundamental
that it is obviously necessary to choose one conception of the school
or the other,34 thus declaring that he could be of no use in . . . a
school following Chicagos path.35
While Jewish law does not maintain a distinction between
public and private law, the Talmudic corpus does contain a vast body
of law that roughly corresponds to what civilian lawyers call private
law: contract, tort, property, agency, inheritance, trust, and family
law. Moreover, the structure of reasoning promoted by the
nineteenth-century Jewish legal scientists bears many similarities to
the contemporaneous private law discourse of German and American
scholars. Like the Roman jurists, the rabbis were far more adept at
rationalizing fairly discrete rules of substantive private law than
they were at discussing political theory, the legitimate scope of
governmental power, constitutionalism, or most of what we call
regulatory and administrative policy. Moreover, the rabbinic focus
on conceptual private law questions is all the more notable since the
Talmudic rules of contract were hardly the most pressing issue to a
traditional society being ripped apart by the social-political forces of
Zionism, communism, and rampant assimilation.
The intimate connection between private law and legal science
in German, American, and Jewish law raises important questions.
From the perspective of intellectual history, it gives us reason to
consider the degree to which the flourishing of legal science is
intrinsically associated with the substantive doctrines of traditional
private law. But the issue is of more than historical interest. One of
the central themes of this conference is whether the vacuum left by
the shrinking nation state can be filled by a discourse of academic
private law which looks beyond it.36 While todays legal science is
substantially different than that of the nineteenth-century
dogmatists, the weight of Savignys tradition (and the Roman one
that stands behind it), continues to direct scholarly inquiry towards
the traditional areas of Roman private law. Thus, European scholars
have expended significant efforts identifying the common doctrines,

Langdells Orthodoxy, 45 U. PITT. L. REV. 1, 34-35 (1983).

34. ELLSWORTH, supra note 33, at 72.
35. Id. at 69.
36. See Michaels & Jansen, supra note 5, at 20-21; 26-27; REINHARD
ZIMMERMAN, ROMAN LAW, CONTEMPORARY LAW, EUROPEAN LAW: THE CIVILIAN
TRADITION TODAY (2001).
702 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 56

frames of reference, cores, and principles of European private law. 37

Of late, even the historically recalcitrant English lawyers seem to be
moving away from the common laws traditional jurisdictional
framing and speaking in the civilianized language of private law, the
law of obligations and unjust enrichment.38
To the best of my understanding, the theory behind these
harmonizing projects is that initial efforts should be directed
towards the foundational and settled legal doctrines, which can then
serve as the basis for engaging in more complex and contemporary
legal problems. But whatever its logic in the Anglo-Continental
setting, from the American vantage point, the Europeans are
searching for something that either does not exist, or at the very
least, is not all that important. To the extent there is a common
core of American law, it is certainly anchored in questions of
Constitutional law rather than the areas of traditional private law
that are subject to the vagaries of state courts and legislatures.
Moreover, even in those instances when doctrinal diversity amongst
the several states is seen as problematic, American law most
typically respondsnot by looking to harmonize the substantive

37. See, e.g., Principles of European Contract Law (PECL) prepared by the
Commission on European Contract Law (Lando Commission),
http://frontpage.cbs.dk/law/commission_on_european_contract_law/; see also the
various texts published by the Study Group on a European Civil Code,
http://www.sgecc.net; the Acquis-Group, http://www.acquis-group.org; the European
Group on Tort Law (Tilburg Group), http://www.egtl.org; the Common Core of
European Private Law Group (Trento Group), http://www.jus.unitn.it/dsg/common-
core or the Academy of European Private Lawyers (Gandolfi Group),
http://www.accademiagiusprivatistieuropei.it/. For more information on the Common
Frame of Reference Project launched by the E.U. Commission and the relevant E.U.
documents, see, e.g.,
http://ec.europa.eu/consumers/cons_int/safe_shop/fair_bus_pract/cont_law/index_en.h
tm#developments. See also Mathias Reimann, The Progress and Failure of
Comparative Law in the Second Half of the Twentieth Century, 50 AM. J. COMP. L.
671, 690-95 (2002).
38. E.g., ENGLISH PRIVATE LAW, supra note 4; ANDREW TETTENBORN, AN
INTRODUCTION TO THE LAW OF OBLIGATIONS (1984); PETER BIRKS, UNJUST
ENRICHMENT (2005); Andrew Burrows, We Do This at Common Law and this at
Equity, 22 OXFORD J. L. STUDS. 1 (2002); see also the inter-Commonwealth listserv
named the Obligations Discussion Group, archived at
<http://www.ucc.ie/law/odg/home.htm.>. For a critical evaluation of these efforts, see
e.g., STEVE HEDLEY, RESTITUTION: ITS DIVISION AND ORDERING (2001) (critiquing
Peter Birks); J.N. Adams, How Not to do Things with Rules, 5 OXFORD J. L. STUDS.
446 (1985) (critical review of TETTENBORN, THE LAW OF OBLIGATIONS). Recently the
Australian High Court has taken to criticizing the increasing civil law tenor of
English law, see e.g., Farah Constructions Pty Ltd. v. Say-Dee Pty Ltd, [2007] HCA
22 at 154 (AU) ([t]he restitution basis reflects a mentality in which considerations of
ideal taxonomy prevail over a pragmatic approach to legal development.);
Roxborough v. Rothmans, [2001] 208 CLR 516 at 544 and ([t]o the lawyer whose
mind has been moulded by civilian influences, the theory may come first, and the
source of the theory may be the writing of jurists not the decisions of judges.
However, that is not the way in which a system based on case law develops; over
time, general principle is derived from judicial decisions upon particular instances,
not the other way around.).
2009] PUBLIC LAW, PRIVATE LAW AND LEGAL SCIENCE 703

rules of private lawbut by pulling the issue out of its private law
framing and recasting it as a constitutional, federal or procedural
issue.39 Because the core of American law revolves around the
tension between individual liberties and the powers of the nation
state, Americans are not quite ready to join their European brothers
in looking beyond.

39. See, e.g., Riegel v. Medtronic, Inc., 128 S.Ct. 999 (2008); Geier v. Am. Honda
Motor Co. 529 U.S. 861, 871-72 (2000) (federal preemption of private law tort
actions); Class Action Fairness Act of 2005, 28 U.S.C.A. 1332(d)(2) (granting federal
district courts greater authority in diversity class action suits and make removal
easier so as to prevent forum shopping in state courts); Mertens v. Hewitt Associates,
508 U.S. 248 (1993); Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204
(2002) (emaciation of trust law through the Supreme Courts interpretation of
ERISA).