Private rights and private wrongs.

• Author: Gold, Andrew S.
• Position: Book review

INTRODUCTION

When should one private person get to be in charge of another? Arguably, this is the central question that private law theorists must answer. On Arthur Ripstein's (1) recent account of tort law, there is a clear answer: never. Indeed, he develops a very sophisticated account of tort law by building on this seemingly simple premise. I will suggest a different answer. Tort law sometimes lets one private party call the shots for another private party. And, furthermore, this can be desirable. (2)

Suppose Jane falls asleep on the beach, and she forgets to take off her watch. She wakes up from a restful sleep to see that someone is in the process of unclasping her watch and stealing it. As she awakens, Jane sees that the watch is no longer on her wrist; it is hanging in the air just above her arm and the thief is about to abscond with it. She reaches up and pries the watch out of the thief s hands, calling for help as she does so. Friends arrive quickly and the thief flees the scene.

Let's call this the Watch example. This case involves a tort doctrine known as "recaption" of "chattel[s]," (3) and the conduct in taking the watch back can be perfectly legal. But it is not self-defense, and it is not even ex ante conduct. Taking the watch back is an ex post undoing of a wrong, rather than a prevention of a wrong that might occur. It is also a case in which one private person gets to be in charge of another, or so I will argue. Accordingly, to the extent that tort law relies on a principle that one person does not get to be in charge of another, it does so inconsistently.

In developing these points, I will begin with an overview of Arthur Ripstein's new book, Private Wrongs. Before doing so, I wish to emphasize the depth of insight that Private Wrongs shows throughout. This is a brilliant book, one that deserves a close read by tort theorists, and also by legal theorists more generally. Private Wrongs will be a landmark in tort theory, and deservedly so. Of particular note is the book's careful analysis of specific tort law settings, an analysis that demonstrates the clarity and vision for which Ripstein's work is known. My focus, however, will not be on individual torts. This Review will address the overarching framework that binds together the different applications of Ripstein's account.

Part I will discuss Ripstein's theory of tort law, outlining several key propositions. Part II will describe the challenge presented by the law of self-help. On the most natural reading, self-help in the United States is often a form of private enforcement of rights, rather than an instance in which individuals stand in for public officials. This reading, however, is inconsistent with the view that one individual does not get to be "in charge of' another. Part III will suggest that interpreting tort law consistent with a morality criterion does not rescue Ripstein's account from this challenge. Courts can quite plausibly understand the private enforcement of rights to be morally legitimate behavior. Part IV will consider an alternative criterion for interpretation--a justice criterion. While adopting a justice criterion raises interesting additional questions about the interrelation of norms of justice, it once again does not solve the problem for Ripstein's account. Part V will then discuss the implications of this analysis. While Private Wrongs does not succeed as a unifying account of tort law, it does offer valuable insights for a pluralist understanding of the field.

1. THE ACCOUNT IN PRIVATE WRONGS

   First, it may help to give an overview of Ripstein's project, beginning with its methodology. While Private Wrongs offers descriptive, prescriptive, and interpretive analyses, the core of the book is interpretive: it is an effort "to identify a set of relevant norms and concepts, and a way of reasoning with them, which govern the interactions between private persons" (p. 22). Ripstein seeks to explain tort law from the legal point of view--that is, to take tort law "at face value." (4) The way law presents itself is therefore central to his endeavor.

   Ripstein candidly recognizes that some cases do not fit his interpretation of tort law. In Chapter Seven, he even describes an entire category of tort--defamation--where United States legal doctrine is inconsistent with his account. (5) But, on his view, these instances are best seen as legal mistakes. (6) think this perspective raises interesting questions about mistaken or outlier cases. An allowance for judicial error is important, as it means that dissenters from the Private Wrongs perspective cannot make their case by simply pointing out features of the law that don't fit. On the other hand, an interpretive account should be falsifiable if it is truly taking tort law doctrines at face value. In the real world, perhaps there are no doctrinal mismatches significant enough to undermine Ripstein's account; but in principle, at least, doctrinal mismatches should be capable of rebutting an interpretive theory of tort law. We need the ability to distinguish those cases that are merely legal mistakes from those cases that, perhaps, undercut the Private Wrongs perspective itself.

   Ripstein's substantive account is broadly Kantian, although not developed as such: common law judges rarely refer to Kant, and the book is not meant to show otherwise. (7) Rather, the correct understanding of tort law is thought to match a Kantian vision of private law even if courts don't consciously intend it to. Ripstein's argument in support begins with "the moral idea that no person is in charge of another" (p. 6). With the exception of defamation--which is likewise explicable in terms of no person being in charge of another--each category of tort is a private wrong involving the use of another's means. In turn, legal remedies are justified by this same structure: even after a wrong has been committed, no person gets to be in charge of another. Remedies are a way of enforcing the plaintiff s right, a right that survives whatever wrong has occurred (p. 6).

   On this account, "[y]our means are just those things about which you are entitled to decide the ends for which they will be used" (p. 9). And, once we focus on the importance of an individual's means for tort law, a three-part structure emerges:

   First, [tort law] protects the means that each person has for setting and pursuing purposes. Second, it restricts the means that each person can use by precluding one person from using means that belong to another without that other's authorization. Third, it restricts the ways in which each person can use his or her own means, to those ways that are consistent with everyone else being able to do the same. (p. 9) Individuals may use their property or body for whatever ends they wish, so long as they do not use another's property or body without that person's permission, and so long as their conduct does not have effects that interfere with the entitlements of others.

   The remedial implications are also quite interesting. As noted, tort remedies reflect the survival of a plaintiffs right after the commission of a wrong by the defendant. As Ripstein suggests, "[i]f I take your coat, I need to give it back because it is still your coat; if I consume your sandwich, the reason I need to replace it is that you continue to be entitled to it, even if it has ceased to exist" (p. 12). This same structure even applies to physical injuries, such as broken arms. In some cases, remedies will be a near equivalent, while in other circumstances the best we can hope for is a much weaker approximation. (8) What all of these cases have in common is a continuity of the plaintiff s right, and this continuity offers insights into both the availability of legal remedies and their content.

   With these basic pieces in place, Ripstein develops a theory that effectively spans all of tort law, from negligence to strict liability, from conversion to defamation, from innocent missteps to malicious wrongs. With a great deal of subtlety, Private Wrongs offers insightful accounts of rights and duties, foreseeability and responsibility. The applications are rich with ideas, and should benefit readers of whatever interpretive stripe or preferred methodology. Explanatory success in one area, however, does not always translate to explanatory success in another--and in this case the account only partially fits with the law. There is a key doctrinal challenge for Private Wrongs: tort law is apparently quite open to the idea of one person being in charge of another.

2. THE PROBLEM OF SELF-HELP

   To see where the problem lies, it may help to think further about what it means for one party to be in charge of another. We might think, after all, that whenever a court orders the payment of damages, one person is in charge of another: either the judge is in charge of the defendant, or, perhaps, the plaintiff is in charge of the defendant. (9) These understandings are prima facie reasonable, but Ripstein's account is very different. On his account, courts emerge as a central requirement if we are to avoid having one person be in charge of another. Ripstein contends that "[w]ithout courts, one person's say-so or enforcement of tort law's requirements would just be a different way of being in charge of others" (p. 13). Or, in another formulation, "[i]f the plaintiff is not in charge of the defendant, then the plaintiff's allegation that the defendant has violated some right of the plaintiffs is just that--an allegation--until a third party with authority over both the plaintiff and the defendant has resolved the dispute on its merits" (pp. 272-73).

   On this view, we need courts precisely because they are "institutions that can claim to be speaking (that is, exercising judgment) and acting (that is, ordering people to do things, backed by the possibility of enforcement) on behalf of everyone" (p. 13). Ripstein's concern with unilateral coercion...