Private law recognizes claims between individuals. Legal economists have argued that claims by the socially disadvantaged against the better off are best dealt with outside private law, primarily through tax and transfer. Most theorists of private law similarly oppose considerations of distributive justice in contract and tort because they have assumed that this would confer a windfall upon poor plaintiffs, and penalize wealthy defendants beyond their fair share. Private law theorists resist this moral arbitrariness; individual legal liability is supposed to reflect individual responsibility, and matters of distributive justice are a collective responsibility.
In this Article, I argue that even if distributive justice is best achieved through collective institutions, our rights and responsibilities to one another as individuals have to be adjusted to reflect background wrongs that the state has failed to remedy. While the state may be in the best position to give effect to social rights, such claims on the state are derivative from rights held against other citizens. Making defendants pay plaintiffs just because of their respective wealth is not practical. Even setting damages in light of litigants' respective wealth would make the scope of liability morally arbitrary. But we can give expression to social rights in private law by holding individuals liable for voluntary conduct that exploits and exacerbates distributive injustice. The doctrine of unconscionability does this in contract, and relaxed standards of causation in the case of certain mass torts have a similar effect. Distributive injustice can shape substantive standards for liability in manner that tracks individual responsibility.
Distributive Injustice and Private Law,
60 Hastings L.J. 105
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