Abstract
This essay reviews John Gardner’s recent books, From Personal Life to Private Law, and Torts and Other Wrongs. Both books offer profound insights into private law’s concerns with justice and our reasons for action. The essay focuses on Gardner’s continuity thesis, and in particular on his idea that a third party (such as the state) may act on behalf of a wrongdoer as her delegee. Three settings are considered. First, I will discuss settings in which the state or another third party acts to remedy a wrong without the wrongdoer’s consent. Second, I will review settings in which the legal remedies at issue – e.g., general damages or punitive damages – may not fit well with the idea that the state is acting on behalf of a wrongdoer. Third, I will analyze settings in which the state may be acting on behalf of right holders (including plaintiffs), yet still be concerned with the continuity thesis. Assessing each of these contexts offers further insights into the purpose of private law remedies.
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Notes
In most cases but not all. Gardner sees unjust enrichment cases as corrective justice cases because they involve allocation back, but they are not explained by the continuity thesis. (TOW, 49).
For a helpful comparison of different versions of the continuity thesis, see Sandy Steel, ‘Compensation and Continuity’, Legal Theory 26 (2020), p. 250.
See Andrew S. Gold, The Right of Redress (Oxford: Oxford University Press, 2020), pp. 28–29.
Gardner references a November 2005 episode of the Curb Your Enthusiasm show. (FPL, 102, n. 17) (citing ‘The Korean Bookie’, Curb Your Enthusiasm (dir. Bryan Gordon, HBO, 27 November 2005), at 11:18). As I have not watched this episode myself, I rely entirely on his account.
See Stephen A. Smith, Rights, Wrongs, and Injustices: The Structure of Remedial Law (Oxford: Oxford University Press, 2019), pp. 118–119.
Another possibility is that some private law remedies are understood as a substitute for revenge. See Scott Hershovitz, ‘Tort as a Substitute for Revenge’, in Philosophical Foundations of the Law of Torts (John Oberdiek, ed.) (Oxford: Oxford University Press, 2014). Gardner rejects revenge-based justifications for private law (FPL, 2–3). I agree with him on this, but, like punishment, revenge offers a conceptual structure that fits poorly with courts acting on behalf of wrongdoers. If courts adopted such a picture, it would challenge Gardner’s interpretation of private law in those settings where revenge was incorporated into private law reasoning.
See John C. P. Goldberg & Benjamin C. Zipursky, Recognizing Wrongs (Cambridge, MA: Harvard University Press, 2020), pp. 143–144.
Gardner does, however, suggest a right-based counterpart to the continuity thesis. (See TOW, 73) (describing a ‘right-in, right-out’ principle).
As Gardner puts it: ‘When a tort plaintiff claims for the cost of replacing a faulty or damaged roof but uses the money instead for a three-week cruise, leaving the roof unrepaired, why is that not a breach of trust, or a deceit, or an abuse of process, or at any rate something such that the misapplied damages can now be recovered by the poor schmuck who paid them?’ (FPL, 226).
On loss of standing to complain, see Nicolas Cornell, ‘A Complainant-Oriented Approach to Unconscionability and Contract Law’, University of Pennsylvania Law Review 164 (2016), pp. 1131, 1159–1163.
One might doubt whether Larry has any moral claim regarding Heineman’s decisions on how to spend the money Larry paid him. For insightful arguments against Larry’s holding such a claim, see John C. P. Goldberg, ‘Taking Responsibility Personally: On John Gardner’s From Personal Life to Private Law’ (ms on file with author).
For helpful analysis of conscience and the law of equity, see Irit Samet, ‘What Conscience Can Do for Equity’, Jurisprudence 3 (2012), p. 13.
Acknowledgements
I am grateful to John Goldberg, Paul Miller, and Sandy Steel for helpful comments on earlier drafts. I am also very grateful to John Gardner for several earlier discussions of his ideas on the justice in private law. Any errors are my own.
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Gold, A.S. Delegation and the Continuity Thesis. Law and Philos 40, 645–661 (2021). https://doi.org/10.1007/s10982-021-09410-0
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DOI: https://doi.org/10.1007/s10982-021-09410-0