Modern Variations on the Theme

This chapter considers contemporary developments in private law. We live in a world that increasingly includes statutory encroachments on common law principles, and some of these revisions alter the way legal claims are pursued. A focus on rights of redress offers different perspectives on several of these developments, sometimes offering grounds for critique and sometimes providing support. This chapter will assess the implications of damage caps, arbitration, litigation finance, corporate claims, and class actions. As will be developed, these contemporary legal features suggest that redress exists along several continuums: it can be more or less private; it can depend on a neutral third-party decision-maker or it can be unilateral; it can be more or less subject to a right holder’s control; and it can be more or less complete. Whichever form redress takes, however, it will also implicate questions of justice. In order to fully appreciate why redress matters, each of these features needs to be assessed.

The Idea of Redressive Justice

Chapter 2 introduces the idea of redressive justice, while also distinguishing leading theories of corrective justice. As the chapter develops, there is a distinctive kind of justice involved when right holders undo wrongful transactions they have suffered—that is, when they engage in acts of redress—or when third parties undo such transactions on the right holder’s behalf. The authorship of a remedy matters, in part because a wrongdoer’s obligation to undo a wrong is not symmetrical with a right holder’s privilege (if it exists) to undo that same wrong. Authorship also matters because the moral ledger of the parties involved will vary depending on which party undoes a wrong. This chapter argues that much of private law is best explained in light of the justice in redress.

Choice, Equity, and Redress

This chapter addresses several puzzles that stem from a right holder’s option whether or not to seek redress. First, there are cases where it would be desirable along various dimensions if a plaintiff were to bring suit. It is a striking feature of private law that a plaintiff nonetheless has the freedom to choose not to sue even if it would be better (for her or for society) if she did sue. Second, there are cases where a right holder can legitimately enforce her rights, yet it would be morally wrongful for her to enforce them. This chapter will discuss mechanisms by which private law addresses such concerns; most significantly, equitable doctrine often limits unduly harsh forms of redress. This feature of equity is important not only for its impact on redress, but also for its implications regarding the state’s role in assisting private parties. Chapter 8 concludes with analysis of the relation between the justice in redress and the justice in equity.

The Value of the Justice in Private Law

This chapter develops the value in possessing a right to redress. Such rights are valuable in part because they can lead to an important type of justice between the parties, but this is not their only benefit. They may deter future wrongdoing, or they may communicate something about the dignity of a wronged plaintiff. This chapter outlines a particular kind of value that a right to redress advances in addition to these others; it provides a right holder with distinctive forms of authorship (both of her life’s narrative writ large and also more narrowly at the level of her specific choices). Rights of redress may also provide a type of private authorship that is distinctively valuable.

The Enforcement of Contracts

This chapter turns to redress in the contract setting, which generally involves contract enforcement or a damages equivalent. Some private law theorists explain private rights of action in light of a right holder’s special standing to make demands. Others look to a wronged party’s standing to complain about a wrong. Each approach offers insights, yet neither of these types of standing will inexorably lead to the standing to enforce. This chapter then considers a particular way that standing to enforce contracts can be explained and justified: if the right to performance is understandable as a property interest or at least property-like. In the process, it also indicates how a focus on rights of redress can help to explain key features of private law doctrine.

Tort Law and Redress

This chapter indicates how the justice in redress covers various tort remedies, including some that are considered hard to explain as reversals of transactions. A key step in the argument is to recognize that there is still justice where wrongs are partially reversed, and not solely in cases where wrongs are fully (or almost fully) reversed. At the same time, remedies such as nominal damages or punitive damages are more difficult to fit into a redress-based model. This chapter explains the extent to which this is a challenge. It also shows how such concerns are explicable within a pluralist picture of private law.

Introduction

This chapter introduces key topics covered in the book, including the justice in redress, the value in a right holder’s authoring acts of redress, and the distinction between the standing to demand a remedy and the standing to enforce it. The chapter also endorses the view that private law has plural aims, allowing for an understanding of private law that avoids unifying private law under a single value or principle. As will be developed, these aims can co-exist without problematic or contradictory effects. From a political theory perspective, this chapter suggests a fiduciary account of the state’s obligations, and it also provides a new take on the relation between redress and self-help. This introductory chapter closes with a look at the role of equity in moderating the effects of redress and an analysis of contemporary legal variations (such as arbitration, damage caps, litigation finance, and class actions).

The Meaning of Self-help

This chapter turns to the problem of self-help. It will also address a potential interpretive objection based on Kantian moral premises. Arguably, rights of redress aren’t legitimately exercisable in a state of nature. The chapter will raise doubts about this objection, and it will suggest that individuals do sometimes have the option of unilaterally redressing the wrongs they have suffered. Where permitted, recaption of chattels and other forms of self-help indicate that private parties are able to undo wrongs while acting on their own behalf. On the view offered here, that can be a legitimate, and even desirable, feature of private law.

The State as a Fiduciary

This chapter analyses the state’s responsibility to provide a venue for civil recourse (ordinarily, by means of a private right of action). Civil recourse theorists have explained the state’s obligation to provide for private rights of action in terms of social contracts. On this view, the state owes its citizens a means to act against a wrongdoer, given that the state has largely prohibited self-help. Such accounts are discussed along with an alternative to a social contract theory: the state may be a fiduciary to its citizens. Elaborating on the fiduciary account, this chapter suggests the state may have an obligation to provide for private law institutions of a certain type. Notably, part of the state’s responsibility may be to provide private law institutions that facilitate pursuit of those projects that individuals find meaningful. Provision for rights of redress may then be an important component of the state’s fiduciary obligations.