Private Law Theory

David Blankfein-Tabachnick and Kevin A Kordana, ‘On Rawlsian Contractualism and the Private Law’, 108 Virginia Law Review 1657 (2022). In ‘On Rawlsian Contractualism and the Private Law’, David Blankfein-Tabachnick and Kevin Kordana, Professors at Michigan State and Virginia Law Schools, respectively, argue that we are witnessing a fundamental shift in the way that legal scholars think about private law. ‘[N]ot long ago’, they tell us, ‘the values taken to govern the private law were thought to be distinct from the values governing taxation and transfer … The conventional, indeed, the nearly universal view of Rawlsianism – the overwhelmingly dominant theory of liberalism and distributive justice – was that the private law lies beyond the scope of Rawls’s two principles of justice’ (p 1657). Now, private law scholars – in tort, but also in contract – are coming to think that these bodies of law are parts of what Rawls called ‘the basic structure of society’. Or so Blankfein-Tabachnick and Kordana argue, citing to, and drawing upon, the work of a dozen or so legal scholars, themselves (and myself) included. Their paper makes an important contribution because the shift that they spot and argue for promises to reorient private law theory in a valuable way. Insisting on the ‘privateness’ of private law threatens to trivialize fundamental legal fields … (more)

[Gregory Keating, JOTWELL, 29 September 2023]