Eric Claeys

Visiting Professor of Law

Spring 2018

Areeda 127

617-998-1676

Assistant: Thompson Potter / 617-496-5028

Biography

Professor Eric Claeys is Professor of Law at the Antonin Scalia Law School, George Mason University. His scholarship focuses on justifications for property rights grounded in natural law and natural rights moralities.

In his earliest writings on property, Professor Claeys showed how principles of natural law justify and structure the police power and the power of eminent domain. Claeys used these insights to critique leading U.S. Supreme Court cases on regulatory takings and eminent domain. Two of thse works have been published in the Cornell Law Review and the Northwestern University Law Review, and one was cited by Justice Clarence Thomas in his dissenting opinion in the 2005 eminent domain decision Kelo v. City of New London.

In his most recent scholarship, Professor Claeys has explored how natural law- and rights-based moralities structure property rights in the private law. Most of his works apply natural law-based justifications in normative theory. In his most recent student-edited law review article, “Labor, Exclusion, and Flourishing in Property Law,” published in the North Carolina Law Review, Claeys offers Lockean labor theory as an alternative to progressive and economic justifications for property rights prominent in contemporary legal scholarship. In his most recent peer-reviewed article, “Intellectual Property and Practical Reason,” accepted for the journal Jurisprudence, Claeys shows how the natural law principles that justify intellectual property also limit it and reconcile it to the public domain, duration limits, and other property rights.

In some of his writings, Claeys studies property and other fields of private law using conceptual analysis. In one recent book chapter in Oxford University Press's collection on Philosophical Foundations of the Law of Torts, Claeys shows how the tort of trespass simultaneously accomplishes substantive goals associated with property law and corrective justice goals associated with torts.

Claeys also applies lessons from his normative and analytical scholarship to contemporary policy. Claeys currently serves as an adviser to the American Law Institute’s ongoing Restatement (Fourth) of the Law of Property. In recent work, he has shown how the natural law foundations of American property law facilitated the extraction and production of shale gas. He has also critiqued recent modifications, suggested by the U.S. Supreme Court in its 2006 decision eBay v. MercExchange, to the standards for issuing injunctions in intellectual property infringement litigation.

Professor Claeys has also developed a fruitful relationship with Harvard law faculty over the years. Claeys writes regularly for the Harvard Law Review.

Professor Claeys graduated with a B.A. from Princeton University, and in spring 2017 he visited Princeton as a Fellow in its Politics Department’s James Madison Program in American Ideals and Institutions. He graduated with a J.D. from the University of Southern California Law School, where he served as the Editor-in-Chief of the Southern California Law Review. After graduating law school, he clerked for the Hon. Melvin Brunetti, U.S. Court of Appeals for the Ninth Circuit, and the Hon. William Rehnquist, Chief Justice of the United States. After clerking he practiced with Kirkland & Ellis’s Washington, D.C. office, and he then taught at the law schools of the University of Chicago and Saint Louis University. Claeys has been a member of George Mason University’s law faculty since 2007.

Areas of Interest

Eric R. Claeys, Intellectual Property and Practical Reason, Jurisprudence (forthcoming 2018).
Categories:
Property Law
,
Disciplinary Perspectives & Law
Sub-Categories:
Legal Theory & Philosophy
,
Intellectual Property - Copyright
,
Intellectual Property - Patent & Trademark
,
Property Rights
Type: Article
Abstract
In scholarship on intellectual property (‘IP’), nonconsequentialist justifications for IP rights seem to suffer from one of two flaws. To some, such justifications seem indeterminate; they seem not to offer concrete guidance about how rights should be structured in practice. To others, such justifications seem dogmatic; they seem to mandate certain conclusions without letting decision makers consider the relevant context or consequences of different proposals to regulate IP. Both impressions neglect an important dimension of reasoning about rights—practical reason. In perfectionist theories of law, ‘practical reason’ describes the principles by which general justifications for rights are implemented in specific decisions in politics and ethics. This article introduces practical reason to IP scholarship, and it shows how practical reason facilitates reasoning about the design of different legal IP rights. The article illustrates with patent’s novelty requirement, copyright’s originality requirement, copyright’s idea–expression distinction, and the duration limits for various forms of intellectual property.
Eric R. Claeys, Labor, Exclusion, and Flourishing in Property Law, 95 N.C. L. Rev. 413 (2017).
Categories:
Property Law
Sub-Categories:
Property Rights
,
Eminent Domain
Type: Article
Abstract
This Article presents a natural rights justification for property rights in a theory called “productive labor theory.” Productive labor theory sets forth a Lockean, labor-based case for property. It links property to human interests in flourishing — specifically in interests in using ownable resources to produce constituent elements of survival or rational improvement. On this foundation, “labor” means intelligent and purposeful activity producing goods contributing to survival or rational improvement. This Article presents productive labor theory as an alternative to the two families of normative theories that currently loom large in contemporary property scholarship — economic theories of exclusion, and progressive theories. Each of these theory-families unsettles property in an important respect; productive labor theory shores up each of the foundations unsettled by exclusion and progressive theories. Like progressive theories, productive labor theory links property on a satisfying moral foundation, namely human flourishing. Unlike progressive theories, productive labor theory doesn’t denigrate or undermine the role that exclusive control plays in property. Like leading economic theories, productive labor theory justifies strong rights of exclusive control and possession. Yet it avoids standard criticisms about normative foundations of law and economic analysis, and it identifies moral boundaries within which efficiency analyses might be normatively defensible. The Article illustrates using: the prima facie case for trespass to land; the common law privilege for necessity and the defense for adverse possession; Allemansrätt and statutory rights to roam; state and local landmark schemes (as exemplified in Penn Central Transportation Co. v. New York City); and regulatory schemes authorizing the use of eminent domain to condemn and reassign private land for commercial redevelopment (as exemplified in Kelo v. City of New London).
Eric R. Claeys, On the ‘Property’ and the ‘Tort’ in Trespass, in Philosophical Foundations of the Law of Torts 122 (John Oberdiek ed., 2014).
Categories:
Civil Practice & Procedure
,
Property Law
Sub-Categories:
Torts
,
Property Rights
Type: Book
Abstract
Recent philosophical scholarship has debated whether the most important priority of torts is to secure individual rights or to supply correction against wrongs to those rights. Recently, some scholars have suggested a compromise: rights-protection is more fundamental to normative justifications for tort, while wrong-correction, or corrective justice, is more important for explaining tort’s structure and organizing concepts. This chapter considers whether that suggested settlement is correct, using the interplay between substantive property rights in land and actions and defenses protecting those rights. The studied doctrines confirm the suggested settlement. On their surfaces, trespass and other related actions and defenses focus on correcting wrongs to owners’ and non-owners’ due interests in the use of or exclusive control over land. But the wrongs declared in these various actions and defenses are all by-products of, and help implement, a logically-prior account of substantive rights in the use of and exclusive control over land.

Current Courses

Course Catalog View