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Civil Wrongs and Justice in Private Law OXFORD PRIVATE LAW THEORY Oxford Private Law Theory publishes leading work in private law theory. It commissions and solicits monographs and edited collections in general private law theory as well as specific fields, including the theoretical analysis of tort law, property law, contract law, fiduciary law, trust law, remedies and restitution, and the law of equity. The series is open to diverse theoretical approaches, including those informed by philosophy, economics, history, and political theory. Oxford Private Law Theory sets the standard for rigorous and original work in private law theory. Series Editors Paul B. Miller, University of Notre Dame John Oberdiek, Rutgers University Advisory Board Lisa Austin, University of Toronto Molly Brady, Harvard University Hanoch Dagan, Tel Aviv University John Goldberg, Harvard University Matthew Harding, University of Melbourne Irit Samet- Porat, King’s College London Seana Shiffrin, University of California, Los Angeles ALSO PUBLISHED IN THIS SERIES Rights, Wrongs, and Injustices The Structure of Remedial Law Stephen A. Smith Civil Wrongs and Justice in Private Law Edited by PAUL B. MILLER AND JOHN OBERDIEK 1 3 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © The several contributors 2020 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-i n- Publication Data Names: Miller, Paul B. (Law teacher), author. | Oberdiek, John, author. Title: Civil wrongs and justice in private law / by Paul B. Miller, University of Notre Dame; John Oberdiek, Rutgers University. Description: New York : Oxford University Press, 2020. | Series: Oxford private law theory | Includes bibliographical references and index. Identifiers: LCCN 2019038643 (print) | LCCN 2019038644 (ebook) | ISBN 9780190865269 (hardback) | ISBN 9780190865290 (online) | ISBN 9780190865276 (updf) | ISBN 9780190865283 (epub) Subjects: LCSH: Torts. | Civil law. Classification: LCC K923 .M566 2020 (print) | LCC K923 (ebook) | DDC 346.03/011—dc23 LC record available at https://lccn.loc.gov/2019038643 LC ebook record available at https://lccn.loc.gov/2019038644 1 3 5 7 9 8 6 4 2 Printed by Integrated Books International, United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com. In Memory of John Gardner Contents List of Contributors ix Introduction xi Paul B. Miller and John Oberdiek I. CIVIL WRONGS AND THE FOUNDATIONS OF PRIVATE LAW 1. The Roles of Rights 3 David Owens 2. Purely Formal Wrongs 19 Liam Murphy 3. The Relevance of Wrongs 41 Andrew S. Gold 4. The Remainder: Deserting Private Wrongs? 63 Ori J. Herstein II. RIGHTS, WRONGS, AND PROCEDURE 5. Civil Wrongs and Civil Procedure 87 Matthew A. Shapiro 6. Losing the Right to Assert You’ve Been Wronged: A Study in Conceptual Chaos? 111 Kimberly Kessler Ferzan 7. Blowing Hot and Cold: The Role of Estoppel 131 Larissa Katz III. CIVIL WRONGS AND REMEDIES 8. The Significance of a Civil Wrong 157 Stephen A. Smith 9. Secondary Duties 185 Victor Tadros viii Contents 10. What Do We Remedy? 209 Nicolas Cornell 11. Tort Remedies as Meaningful Responses to Wrongdoing 231 María Guadalupe Martínez Alles 12. Don’t Crash into Mick Jagger When He Is Driving His Rolls Royce: Liability in Damages for Economic Loss Consequent upon a Personal Injury 253 James Penner IV. CIVIL WRONGS IN TORT LAW 13. Joint- Carving in Deontic Tort 275 Ahson Azmat 14. It’s Something Personal: On the Relationality of Duty and Civil Wrongs 301 John Oberdiek 15. Torts Against the State 323 Paul B. Miller and Jeffrey A. Pojanowski 16. Is Tort Law “Private”? 351 Gregory C. Keating 17. Should Tort Law Demand the Impossible? 373 Adam Slavny V. CIVIL WRONGS IN PROPERTY LAW 18. Property Wrongs and Egalitarian Relations 395 Christopher Essert 19. Owning Bad: Leverage and Spite in Property Law 415 Lee Anne Fennell VI. TORT, CRIME, AND CONTRACT 20. Tort Law, Expression, and Duplicative Wrongs 441 Findlay Stark 21. Vosburg v. Baxendale: Recourse in Tort and Contract 463 John C.P. Goldberg and Benjamin C. Zipursky Bibliography 485 Index 511 Contributors María Guadalupe Martínez Alles, Professor of Law, Universidad de San Andrés Ahson Azmat, Associate, Boies Schiller Flexner LLP Nicolas Cornell, Assistant Professor of Law, University of Michigan Christopher Essert, Associate Professor of Law, University of Toronto Lee Fennell, Max Pam Professor of Law, University of Chicago Kimberly Kessler Ferzan, Harris Robertson Professor of Law, University of Virginia Andrew S. Gold, Professor of Law, Brooklyn Law School John C.P. Goldberg, Carter Professor of General Jurisprudence, Harvard University Ori J. Herstein, Senior Lecturer in Law, Hebrew University of Jerusalem, and Senior Lecturer in Law, King’s College London. Larissa Katz, Associate Professor of Law and Canada Research Chair in Private Law Theory, University of Toronto Gregory C. Keating, Maurice Jones, Jr.—C lass of 1925 Professor of Law and Philosophy, University of Southern California Paul B. Miller, Professor of Law and Associate Dean, University of Notre Dame Liam B. Murphy, Herbert Peterfreund Professor of Law and Professor of Philosophy, New York University John Oberdiek, Professor of Law, Rutgers University David Owens, Professor of Philosophy, King’s College London James E. Penner, Kwa Geok Choo Professor of Property Law, National University of Singapore Jeffrey A. Pojanowski, Professor of Law, University of Notre Dame Matthew A. Shapiro, Associate Professor of Law, Hofstra University Adam Slavny, Associate Professor of Law, University of Warwick Stephen A. Smith, James McGill Professor of Law, McGill University Findlay Stark, University Senior Lecturer in Law, University of Cambridge Victor Tadros, Professor of Law, University of Warwick Benjamin C. Zipursky, James H. Quinn ‘49 Chair in Legal Ethics and Professor of Law, Fordham University