Post by: Andrew Gold
Private law theorists usually adopt morality criteria when assessing the plausibility of a given theory. (For helpful assessment of these criteria, see Stephen A. Smith, Contract Theory 13-24 (2004)). That said, private law sometimes incorporates concepts that are hard to square with the standard morality-based pictures of private law. Nathan Oman has recently argued that private law is concerned with honor. See Oman, The Honor of Private Law, 80 Fordham L. Rev. 31 (2011). Tony Sebok has suggested that punitive damages involve a type of private revenge. See Sebok, Punitive Damages: From Myth to Theory, 92 Iowa L. Rev. 957 (2007). And fiduciary law’s duty of loyalty may raise similar honor-related themes (compare Cardozo’s famous discussion of fiduciary loyalty in terms of a “punctilio of an honor the most sensitive”). The resulting concepts have an uneasy relationship with pre-existing accounts of private law doctrine. Assuming that concerns with honor or revenge are embedded in private law reasoning, and assuming the pre-existing theories are at least partly right, it is an interesting question how one set of norms should intersect with the other.