»The New Private Law«: Die neue amerikanische Privatrechtswissenschaft in historischer und vergleichender Perspektive

»The New Private Law«: A Historical and Comparative Perspective on the Emerging New Private Law Scholarship in the United States In 2011, the Harvard Law Review held a symposium entitled »The New Private Law«. This title was chosen to capture what is allegedly a new stream in US legal scholarship: a group of scholars arguing for the normative distinctiveness of private law and proposing a reconstructive, rather than deconstructive, approach to its traditional concepts. This essay analyses »The New Private Law« from a historical and comparative perspective. It briefly recalls what are presently perceived to be the typical differences between German and American legal scholarship. Afterwards it traces the origins of this divergence, thereby focussing on the decline of doctrinal scholarship and the rise of the critique of private law in the US over the course of the 20th century. Against this background, the essay then examines the program of »The New Private Law« and some of the new theories of private law that are put forward under this heading. While it is too early to refer to »The New Private Law« as a coherent intellectual movement, the essay contends that one can indeed speak of a new mood in American legal thought: a growing dissatisfaction with the established, critical accounts of private law that gives rise to the development of innovative new theories offering constructive reinterpretations of some of its most fundamental concepts. The essay concludes by noting significant differences between »The New Private Law« and present private law scholarship in Germany. In particular, it holds that the first is more ambitious in theoretical terms than most of the latter.