Private Law Theory

ABSTRACT
This chapter is a contribution to a festschrift volume in honor of the late Stephen A Smith. It will assess Smith’s deservedly canonical interpretive methodology, with a focus on his coherence criterion. Under this approach, we should seek an account of a private law field – tort, contract, fiduciary law, property – that shows how most of that field’s core elements can be traced to, or are closely related to, a single principle. I will suggest that coherence criteria like Smith’s could be better explained and justified as a kind of elegance criterion. The pursuit of elegance may reflect a theorist’s tastes, and nothing more. But, properly elaborated, an elegance criterion can also be adopted as a component of a fit criterion – that is, it can help us discern the law’s ‘self-understanding’. An elegance criterion thus has much to offer for private law theory. In the process, it could also help further the goals which Smith himself sought to advance.

Gold, Andrew S, The Elegance of Private Law (September 16, 2023). Forthcoming in Understanding Private Law: Essays in Honour of Stephen A Smith (Evan Fox-Decent, John CP Goldberg and Lionel Smith, editors) (Hart Publishing).