Andrew S. Gold (Brooklyn Law School) has posted The Elegance of Private Law (Forthcoming in Understanding Private Law: Essays in Honour of Stephen A. Smith (Evan Fox-Decent, John C.P. Goldberg & Lionel Smith, editors) (Hart Publishing)) on SSRN. Here is the 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.
Highly recommended.
