The Right of Redress (Oxford Legal Philosophy)

The law enables private parties to undo the wrongs committed against them. In other words, the law enables victims to seek redress. This book shows how a distinctive kind of justice governs our legal rights of redress, different from the leading corrective justice approaches. In the process, it helps to make sense of tort, contract, fiduciary law, and unjust enrichment doctrine. As developed in The Right of Redress, when a wrong is remedied, the authorship of that remedy matters. The justice in private law is sensitive to a right holder’s authorship, and understanding how solves a number of legal theory puzzles. This book also offers a novel account of the state’s obligations. Many forms of redress are only available with state assistance, and a full account of private law requires an account of the state’s responsibility to assist. It also requires an explanation of those cases in which the state declines to assist. Prior accounts have drawn on Kantian principles or a Lockean social contract theory. Drawing on public fiduciary theory, The Right of Redress develops a distinctive account of the state’s role. Lastly, this book offers a new take on various modern features of the private law landscape, ranging from equity, to damage caps, to arbitration, to corporate claims, to class actions. The Right of Redress thus offers a path-breaking account of the justice in private law, of the political theory that underlies it, and of the contemporary features that shape our rights of redress today. Cover 1 Series 3 The Right of Redress 4 Copyright 5 Dedication 6 Epigraph 7 Preface 8 Acknowledgements 10 Contents 12 Detailed Contents 14 1. Introduction 18 I. An Introduction to the Right of Redress 18 II. Overview of the Argument 22 A. The idea of redressive justice 22 B. The value of a right to redress 24 C. Applications to contract law and tort law 26 D. Understanding the state’s role 29 E. Redress and equity 32 F. Redress and contemporary law 34 III. On Interpretive Method 35 2. The Idea of Redressive Justice 38 I. Introduction 38 II. The Corrective Justice Picture of Allocation Back 39 A. Corrective justice and allocation back 40 B. The Continuity Thesis 41 C. The enforcement challenge to the Continuity Thesis 43 D. Summary 47 III. The Place for Redressive Justice 48 A. Redressive justice defined 48 B. The Asymmetries between corrective justice and redressive justice 50 C. The significance of authorship 55 IV. Differentiating Redressive Justice from other Types of Justice 58 V. Redressive Justice and Continuity 60 A. The Persistence Thesis 61 VI. The Legitimacy of Redressive Justice in Particular Cases 66 3. The Value of the Justice in Private Law 71 I. Introduction 71 II. Shared Benefits and Unique Benefits 72 III. Towards a More Private Private Law 75 A. Why care about attribution? 75 B. The import of residual sovereignty 78 C. Not by the grace of another 81 IV. The Value of Private Attribution, Revisited 83 A. The authorship value 83 V. The Judicial Agency Challenge 85 VI. The Multiple Levels of Authorship 90 4. The Enforcement of Contracts 97 I. Introduction 97 II. Is There a Divergence from Promissory Morality? 98 A. A promisor’s obligations 98 B. The standing problem 101 C. What is missing 105 III. The Enforcement Concern 106 A. Demands, complaints, and enforcement 106 B. Distinguishing contracts from ordinary promises 110 C. Theories of just property acquisition 112 IV. The Specific Performance Question 116 V. Explanatory Payoffs 120 5. Tort Law and Redress 127 I. Introduction 127 II. The Remedial Fit Question in Make-​whole Settings 128 A. Torts with proprietary remedies 128 B. Torts and accident law 131 C. The problem of incomplete reversals 133 III. Injunctions, Nominal Damages, and Punitive Damages 136 A. Ex ante injunctive relief 137 B. Nominal damages 141 C. Punitive damages 145 IV. Towards Pluralism in Tort Theory 147 6. The State as a Fiduciary 156 I. Introduction 156 II. Social Contract Approaches 159 III. The Fiduciary State 163 IV. What Kind of Loyalty Does the State Owe? 165 A. The conventional loyalty categories 165 B. Meaning, well-​being, and loyalty 166 C. The aggregation problem 168 V. Spheres of Private Sovereignty 170 VI. The State, the Private Right of Action, and Rights of Redress 172 7. The Meaning of Self-​help 177 I. Introduction 177 II. The Account in Private Wrongs 179 III. The Problem of Self-​help 179 IV. The Morality Criterion 184 V. The Justice Criterion 190 VI. Variations on the Theme 196 8. Choice, Equity, and Redress 199 I. Introduction 199 II. Optional Justice and Justice Forsaken 201 A. Consistency with criteria for norms of justice 201 B. Optional justice and justice forsaken 203 III. Justice that Wrongs and Justice that is Wrongful 207 A. Justice that wrongs 208 B. Justice that is morally wrongful 209 IV. The Self-​Regarding Account of Equity 212 A. Introducing the self-​regarding account 212 B. Explaining the law’s allowance for sticklers 215 C. Equity and justice 216 V. Redress and the Justice in Settlements 219 9. Modern Variations on the Theme 222 I. Introduction 222 II. Partial Redress and Damages Caps 223 III. The Problem of Plaintiff Identity 227 A. Litigation finance and claim alienation 227 B. Corporate plaintiffs 231 IV. Consent, Arbitration, and Class Actions 236 A. Arbitration 236 B. Class actions and opt-​outs 241 V. The Dimensions of Redress 244 Index 248 The law enables private parties to undo the wrongs committed against them, allowing victims to seek redress. A distinctive kind of justice governs our legal rights of redress, different from the leading corrective justice approaches. Through analysis of this key idea, The Right of Redress helps to make sense of tort, contract, fiduciary law, and unjust enrichment doctrine. When a wrong is remedied, the authorship of that remedy matters. The justice in private law is sensitive to a right holder's authorship, and understanding how solves a number of legal theory puzzles. Many forms of redress are only available with state assistance, and a full account of private law requires an account of the state's responsibility to assist. It also requires an explanation of those cases in which the state declines to assist. Prior accounts have drawn on Kantian principles or a Lockean social contract theory, where The Right of Redress , drawing on public fiduciary theory, develops a distinctive account of the state's role. This book offers a new take on various modern features of the private law landscape, ranging from equity, to damage caps, to arbitration, to corporate claims, to class actions. The Right of Redress thus offers a pathbreaking account of the justice in private law, the political theory that underlies it, and the contemporary features that shape our rights of redress today. The law enables private parties to undo the wrongs committed against them, allowing victims to seek redress. A distinctive kind of justice governs our legal rights of redress, different from the leading corrective justice approaches. Through analysis of this key idea, The Right of Redress helps to make sense of tort, contract, fiduciary law, and unjust enrichment doctrine. 0When a wrong is remedied, the authorship of that remedy matters. The justice in private law is sensitive to a right holder's authorship, and understanding how solves a number of legal theory puzzles. Many forms of redress are only available with state assistance, and a full account of private law requires an account of the state's responsibility to assist. It also requires an explanation of those cases in which the state declines to assist. Prior accounts have drawn on Kantian principles or a Lockean social contract theory, where The Right of Redress, drawing on public fiduciary theory, develops a distinctive account of the state's role. 0This book offers a new take on various modern features of the private law landscape, ranging from equity, to damage caps, to arbitration, to corporate claims, to class actions. The Right of Redress thus offers a pathbreaking account of the justice in private law, the political theory that underlies it, and the contemporary features that shape our rights of redress today 'The Right of Redress' advances the discussion of corrective justice in private law by refocusing the reversal of transactions away from the prevailing account of the wrongdoer's remedial duty and toward the right of an individual to obtain redress, what the author terms 'redressive justice'