Jeffrey A. Pojanowski (Notre Dame Law School) has posted Private Law and Legislation's Domain (82 Fordham L. Rev. __ (Forthcoming 2014)) on SSRN. Here is the abstract:
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory.
This Article’s analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory conception of private law while also advocating courts’ independent judgment in statutory gaps. Much public law theory on statutory interpretation, however, challenges this preference for background law over legislative policy, at least when private law is understood primarily as public regulation. By contrast, the more a court views private law as a coherent practice autonomous from public regulation, the more justification it has to develop that doctrine amid legislative silence. This space for creativity can be most pronounced for statutory formalists like textualists, a counterintuitive implication given the latter approach’s association with judicial restraint.
Finally, the analysis illuminates the larger question of whether private law adjudication and scholarship need an intervention from public law theory in statutory interpretation. If, as much law and scholarship presumes, private law is simply public regulation by adjudicative means, most every question at the junction of private law and legislation concerns statutory interpretation broadly understood. In that case, private law scholars’ indifference about public law scholarship in legislation is difficult to defend. By comparison, private law’s innocence of statutory interpretation theory is more easily justified on non-instrumental assumptions about background doctrine.