Skip to content

Henry E. Smith, Fessenden Professor of Law and Director, Project on the Foundations of Private Law

What are you working on now?

I’m the lead reporter for the American Law Institute’s Fourth Restatement of Property, and Interim Dean John Goldberg and Deputy Dean Maureen Brady are two of the nine associate reporters. The Institute just came up on its 100th anniversary. It was created because it was thought that restating the law in a compact form, with commentary, would be useful, especially in areas like property. You had some 50 jurisdictions and territories and their laws may not have been converging. The American Law Institute wanted to streamline the law and push it in a good direction. The idea was that the courts would be able to look to the restatement when they were deciding cases and that people would be able to think about the field in a new way. Property law was one of the original areas, but interestingly it was one that was never really restated completely. Our ambition is to do the first comprehensive one.

What are some of the issues you’re grappling with?

It’s interesting how technology presents challenges for some of the most basic and interconnected concepts in the law. There is the whole notion of possession and whether it extends to non-physical resources and intangibles. For example, can data be possessed? If I took your data, but you still had it, can I have taken it for my own purposes? If you said data could be possessed, you would create all kinds of liability for the tort of conversion and raise all sorts of other questions.

Courts in the United States have differed quite a lot on the conversion of intangibles. The easiest cases are the ones where there’s a definitive legal consequence of ownership — such as NFTs [non-fungible tokens] or cryptocurrency — that should probably fall on the side of property that can be converted. For the Restatement, we’re not extending possession to intangibles, but we do in a modest way extend notions like conversion to non-physical forms of control.

We have also been addressing the law of nuisance. A recent case in England generated worldwide discussion:  the Tate Modern art museum in London erected a viewing platform that was right next to a residential building with floor-to-ceiling windows. Residents sued, complaining that visitors on the platform were looking into their apartments and taking videos, and there were different opinions in the courts and throughout the legal community over whether this constituted a nuisance. [The UK Supreme Court recently overturned two earlier decisions, ruling in favor of the residents.]

Do we think about private law differently in the U.S. than in other countries?

Private law can mean a lot of things. The most general definition would be law governing people’s relationships with each other. The state may be involved — it may provide the forum, it may provide the law, but it’s not on the other side in litigation or enforcing a duty to the public.

A number of subjects partake of this: contracts, property, torts. And in many other countries, other areas, including family law and corporations, would be thought of as private law as well. All of these areas also have a public dimension.

In other legal systems — in civil law systems and in England and the Commonwealth — the identity of private law is much more pronounced that it is here. In many civil law countries, private law is a matter of a code, and there’s a special mode of legal reasoning, a different kind of theory. Whereas here, ever since the legal realism of the early 20th century, there’s more skepticism about that, and more tendency to evaluate law from an external perspective. Law and economics is one of many examples.

Although the restatement focuses on U.S. property law, we have international advisors. Comparative law can be very helpful in a project like this. Canadians are very active in the advisory group, and we also have people from civil law countries. Canada is very close to us geographically, but takes a very different approach in certain areas of law. For example, separate equity courts, intended to ensure just remedies, were largely abolished in the U.S. in 1938 — except in Delaware and a few other jurisdictions. Even though Canada too has unified courts, equity remains a more distinct part of the law there. This difference often emerges in our discussions.

You often collaborate with scholars from other countries, including professors from our exchange partner schools. How is this valuable for you?

Sometimes people from other jurisdictions — and this applies to both common law and civil law jurisdictions — have worked out solutions that can be an inspiration for thinking about problems here, especially when it comes to new problems like property and intangibles.

I’ve benefitted from collaborating with Mikhaïl Xifaris, a Professor of Public Law at Sciences Po Law School in Paris and a former visiting professor at HLS, who teaches legal philosophy, property and jurisprudence. He invited me to give several talks there and I appreciated the opportunity to engage with graduate students and faculty.

There’s an international community of people who are interested in intellectual property and private law. For example, I recently met with Professor Poorna Mysoor from the University of Cambridge, when she spent time at HLS.

In fall 2022, I spent three weeks at the University of Geneva, and gave some talks there. One was on the nature of restatements, and comparing them to codification; another was on equity and trusts; and a third was on property and intangibles. It was great; I got to know a lot of people there, and found their perspectives extremely valuable for my own work.

My visit was arranged by Jacques de Werra, a professor of the law of obligations (contract law) and intellectual property at the Faculty of Law. He also directs the university’s Digital Law Center. He has a longstanding relationship with Harvard and with our Private Law Project, and we have collaborated for many years. For example, he participated in a symposium on private law and intellectual property that we co-sponsored with the Harvard Journal of Law and Technology, sharing his insights about the need to create global IP licensing rules.

Over the years we have also co-sponsored several conferences in other countries on topics including comparative equity, IP and private law, and legal reasoning in common and civil law.

Does this focus on comparative and foreign law also emerge in your work with students?

There are a lot of courses on private law subjects at HLS, but our Private Law Workshop is the one that puts all of these questions at the forefront. At HLS, we have a lot of LL.M.s from jurisdictions in which private law is emphasized.

The Project on the Foundations of Private Law also has student fellows, who conduct research designed to lead to publishable articles. We get a steady stream of interesting papers — recent examples include punitive damages in Latin America and comparing American bailment law with German contract law. Bailment is the rightful taking of possession for a limited purpose, as in valet parking or a coat check, and there are responsibilities that the person taking possession has. Interestingly, in German law, there is no category that corresponds to this, although they enumerate contracts and situations that cover the same territory, so it was a very interesting comparative exercise.

Other members of the community bring an international perspective. We host visiting scholars from around the world. Some of our postdocs have had some of their legal education in other jurisdictions, and a couple of them now teach in Canada and the UK. We look forward to even more of these contacts in the future.