Yale-Toronto Private Law Theory Discussion Group
Inaugural Workshop
Saturday April 24th, 2021
12:30 PM - 4:00 PM
A Zoom link will be circulated to registrants.
The Private Law Theory Discussion Group is a new initiative between the University of Toronto Faculty of Law and the Yale Law School. The workshop aims to provide a forum for established and early career scholars to present their in-progress work in private law theory to an audience of students and faculty. The Discussion Group has a broad understanding of private law and theory, and welcomes work deploying philosophical, economic, historical, and other methodologies to the study of private law. Papers may focus on doctrinal issues with a theoretical overlay or more abstract issues concerning private law.
The discussion group’s first event is slated for Saturday April 24th at 12:30-4pm. We are delighted to have Professors John C.P. Goldberg (Harvard), Larissa Katz (Toronto) and Daniel Markovits (Yale) presenting papers. Papers will be pre-circulated, and speakers will be asked to give 20-minute presentations before opening up the floor to Q&A.
The schedule of the event is as follows:
12:30-1:30 –– Goldberg, “Taking Responsibility Seriously: On John Gardner's From Personal Life to Private Law”
1:30-1:45 –– break
1:45-2:45 –– Katz, “The Role of Plaintiffs in Private Law Institutions”
2:45-3:00 –– break
3:00-4:00 –– Markovits, “Promise Made Pure”
Please see below for the speakers’ Abstracts.
In future years, the workshop aims to hold two events per semester. Individuals affiliated with the University of Toronto Faculty of Law and Yale Law School are welcome to attend. All other individuals interested in attending should seek prior approval from the organizers of the workshop. We welcome external participants.
To register to attend the group’s events, including this inaugural workshop, please contact co-convenor Amit Singh (amitpal.singh@mail.utoronto.ca).
Author: John C. P. Goldberg
Title: Taking Responsibility Personally: On John Gardner’s From Personal Life to Private Law
Abstract
The late John Gardner’s elegant and rich book, From Personal Life to Private Law, identifies important connections between the everyday morality of interpersonal interactions and the substantive and remedial rules of private law. Both realms, he argues, are structured in significant part around duties to avoid injuring that, when breached, give rise to duties of repair. This essay elucidates the connections Gardner locates, but also questions a connection that he deliberately declines to draw between quotidian instances of “answerability” for moral wrongs, on the one hand, and legal liability, on the other.
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Author: Larissa Katz (co-authored with Matthew Shapiro)
Title: The Role of Plaintiffs in Private Law Institutions
Abstract
In common law systems, when someone’s private law rights have been violated, the wronged individual initially determines whether the wrongdoer will be held accountable, by deciding whether to sue the wrongdoer in court and press her claims through the various stages of civil litigation. The victim of the wrong alone—not some government official or other third party— enjoys the power to sue. Why? According to what we’ll refer to as the conventional view, the victim should be the one who decides whether to call the wrongdoer to account precisely because she’s the one who suffered the wrong. John Gardner emphatically rejected the conventional view. Gardner insisted that the power to sue is a distinct right from the substantive rights recognized by private law and thus requires its own, distinct justification. And when he turned to providing that justification, he grounded the power to sue not in considerations personal to the victim, but rather in institutional considerations. Gardner, however, equivocated about the precise nature of that role, with implications for both the doctrinal compatibility and the normative appeal of his account of the power to sue. We argue that there are good normative and doctrinal reasons for conceiving of plaintiffs as institutional actors who share authority with judges in a decentralized form of the administration of justice. We offer our own account of what that institutional role consists in and of the reasons both institutional and personal why enforcement of rights is a matter for the wronged right-holder.
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Author: Daniel Markovits
Title: Promise Made Pure
Abstract
Promises create obligations simply by announcing that they are calling these obligations into being. Everyday morality therefore condemns even what one might call the bare wrong of breaking a pure promise—a promise where the promisee, perhaps because he has doubted his promisor all along, has not relied on nor even formed any expectation of performance.
This bootstrapping bedevils philosophical efforts to give the obligations that promises create a solid footing. An obligation, including a promissory obligation, is a kind of reason. Reasons track values. Values depend on interests. But it is difficult to explain what interest could ground a promissory obligation whose breach is a bare wrong. The ordinary interests that might be in play—associated with lost reliance and disappointed expectations, or with abiding by beneficial and fair social practices—have been excluded by the construction of the case.
A successful solution to the puzzle of the bare wrong identifies and illuminates a human interest at stake even in a pure promise, whose breach would appear (but for the light cast by the solution) to constitute a bare wrong. Persons have a fundamental interest in reciprocally recognizing and engaging one another as persons; that is, as agents who possess independent wills and whose intentions (and not just interests) therefore assert free-standing claims on one another’s practical lives. Promise—both promise-making and promise-keeping—constitutes an instance of such recognition, a form of solidarity: promising, as Hannah Arendt has said, arises “directly out of the will to live together with others in the mode of acting and speaking . . . .” Breaking a promise, by contrast, undermines solidarity. It involves a kind of insult, which alienates or estranges the promisor and promisee, placing their intentions undesirably at odds—that is, into a relation that sets back their interest in solidarity. Promise breaking has this consequence, moreover, even where the promisee has neither relied nor formed any promissory expectations. Even in this case, therefore, promissory obligation stands not bare but rather clothed by the human interest in solidarity.
