Private Law Theory

ABSTRACT
Interstitial private law helps separate private law fields one from another (eg, tort, contract, fiduciary law), while determining which field should prevail in cases of overlap. This paper will argue that the resulting differentiation of legal fields is valuable for multiple reasons. One major consequence is that these fields are more modular, and this modularity cuts down on delineation costs and information costs. Yet we have reason to care about a field’s modularity even if our primary concern is not with economic benefits. This is not just because handling complexity can help with other goals, such as advancing the rule of law or providing corrective justice more effectively. It is also because modular structures, at both mid-level and micro-level, can help contribute to the existence and meaning of special relationships that the law helps constitute.

Gold, Andrew S, Private Law’s Choice of Private Law (December 11, 2023). Forthcoming in: Interstitial Private Law (Samuel Bray, John CP Goldberg, Paul B Miller and Henry E Smith, eds) (Oxford University Press).