Internal and External Perspectives: On Methodology in the New Private Law

Forthcoming, The Oxford Handbook of New Private Law (Andrew S. Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin, and Henry E. Smith, eds.) (Oxford University Press)

17 Pages Posted: 6 May 2019

Date Written: April 28, 2019

Abstract

New Private Law scholarship is concerned with the internal point of view. Yet, that feature does not distinguish it from much earlier work in private law theory. This chapter suggests an additional distinguishing factor: the New Private Law movement tends to combine an interest in the internal point of view with insights from external perspectives and associated methodologies. A leading example is Inclusive Functionalism, which seeks to show how taking private law concepts seriously on their own terms can shed light on private law’s functional benefits. Internalists may likewise draw on external perspectives, including in their development of interpretive criteria. Finally, New Private Law theory also includes hybrid accounts that are neither fully internalist nor externalist. Illustrations are given for each category. As will be developed, each of these possibilities gives New Private Law theory a distinctive approach to understanding private law.

Keywords: New Private Law, internal point of view, external point of view, functionalism, legal realism, private law theory, torts, contracts, property

Suggested Citation

Gold, Andrew S., Internal and External Perspectives: On Methodology in the New Private Law (April 28, 2019). Forthcoming, The Oxford Handbook of New Private Law (Andrew S. Gold, John C.P. Goldberg, Daniel B. Kelly, Emily L. Sherwin, and Henry E. Smith, eds.) (Oxford University Press), Available at SSRN: https://ssrn.com/abstract=3379364

Andrew S. Gold (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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