Post by Andrew Gold
I’m writing to put in a quick word about my new book, The Right of Redress – now published in the Oxford Legal Philosophy Series. (Here is a poster for the book, which includes a discount code.) Corrective justice theories of private law often focus on a wrongdoer’s obligation to fix his wrong. I suggest, however, that private law can instead be understood in terms of a right holder’s right to redress the wrong she suffered. This difference in perspective helps illuminate a range of private law features that are often obscured by other approaches.
Here is an example from the text, at page 1:
Imagine a case in which you have just purchased a unique and expensive gift for a family member. As you leave the store, a stranger approaches and steals your shopping bag from you, taking the gift and fleeing. You run after the thief, calling out for help. Fortunately, the thief is not as fast you are, and he stumbles so that you have a chance to grab the bag back. You also see that there are no police in sight and, if the thief gets away, your gift will never be recovered. Is it morally acceptable for you to grab the bag back? If you successfully take your bag back, is that a kind of justice?
Notice that this case is not about holding someone accountable for their wrongdoing, as is often emphasized in civil recourse theories. Nor is it about when someone has standing to demand responsive conduct. For that matter, this is not a genuine case of self-defense. Your right to take back your bag involves a different set of moral and legal phenomena. In my view, it also involves a distinctive kind of justice. I will argue that understanding when this kind of justice is appropriate (and deserving of legal support) can then shed light on contract law, tort law, fiduciary law, unjust enrichment, and equity. I will also offer a public fiduciary account of the state’s role in facilitating this kind of justice. Lastly, I will conclude with an assessment of various modern features of private law, ranging from class actions, to litigation finance, to arbitration.
For further context, a draft of the Introduction chapter is available at SSRN.
I would very much welcome any thoughts on the book’s argument!