Private Law Theory

INTRODUCTION
In a series of decisions, the Supreme Court subjected the interpretation and application of discrimination law to basic tort law principles. These tortification cases have strengthened broader concerns that the judicial approach to rights against private forms of discrimination tends to be rigid and defendant-friendly, thereby diminishing the regulatory impact of discrimination law (and the impact of progressive legislation more generally). This Article tells the story of tortification through the influence of a deep common law and common morality principle, which holds that our duties to others must overlap with our responsibilities to them. The challenge that underlies and shapes the tortification trend is how to satisfy both this principle and discrimination law’s goals …

Tom Kohavi, Discrimination Law as Private Law, 88 Albany Law Review (2026).