Course Information

Course Number




JD Graduation Requirements

This course typically satisfies all or some of the following JD graduation requirements:
  • Writing

Private Law Beyond the State

If globalization puts the dominant role of the State into question, private law must be affected as well. Yet what does globalization mean for private law? Will all law be private law - made by private parties, and conceived for private parties? Will there be a global private law created by the marketplace, a new law merchant? Will the legal relations between states and individuals be governed by private law? Or are our ideas about private law intrinsically tied to the state, so private law is impossible without the state? Is law, including private law, necessarily linked to state institutions for its production and enforcement? This seminar will look to the past, the present, and the future of the relation between private law and the state.

Topics include the following (depends on the number of outside speakers and their topics)

  1. Law and the State in Europe (Harold Berman, Law and Revolution; Lotharian Legend on reception of Roman Law in Germany; French Civil Code as civil Constitution of France )

  2. The Common Law and the State (English Common Law and English Nation, Reception into the US as non-state law (?), Swift v Tyson and Erie RR. V. Tompkins)

  3. The Legal Realist Attack on the Autonomy of Private Law (Matthew Hale, Morris R. Cohen, lingering ideas of the state behind the public/private divide)

  4. Law Merchant, Old and New (e.g. Luke v Lyde, Schmitthoff, arbitration decisions, economic analysis of law merchant)

  5. Self-Creating Private Law (Gunther Teubner, Global private regimes: Neo-spontaneous Law and Dual Constitution of Autonomous Sectors in World Society? In: Karl-Heinz Ladeur (eds.) Public Governance in the Age of Globalization. Ashgate, Aldershot 2004, 71-87)

  6. Religious Laws and the State: Canon Law, Shar'iah (Berman; Shamil Bank Case on Islamic law before national courts;

  7. Private Ordering on the Internet

  8. Lex sportiva (autonomous law of sport)

  9. Restatements (US and international: UNIDROIT Principles of International Commercial Contracts)

Please note that course organization and content may vary substantially from semester to semester and descriptions are not necessarily professor specific. Please contact the instructor directly if you have particular course-related questions.


Nils Jansen, Ralf Michaels
Private Law Beyond the State 766.01
Fall 2008
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Ralf Michaels
Private Law Beyond the State 766.01
Spring 2007