Table Of ContentCivil 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
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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
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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
