Private Law Theory

INTRODUCTION
… This Essay suggests that the time has come to revitalize private law – tort law, in particular – as an engine of national virtue. The groundswell of activism in the summer of 2020 lends itself to particularizing this argument to the virtue of racial justice, but it is equally applicable to gender justice, economic justice, and innumerable other areas where social fracture burdens human flourishing. Part I summarizes the intellectual history that has led legal academics to treat public law as the only legal intervention applicable to social ills like racism. Part II surveys how disciplines outside law understand the component parts of racism and the most effective responses to them, including mechanisms that position Black people as storytellers and white people as listeners. It then demonstrates that tort litigation facilitates these processes and thus produces a distinct kind of virtue that is a crucial complement to the systemic reforms at the heart of public law. Part III shows these processes at work in the iconic battery case of Fisher v Carrousel Motor Hotel, Inc. Finally, the conclusion reminds us that Professor Marshall Shapo’s entire body of work can be understood as a commitment to tort’s virtue-production capacity.

Cristina Carmody Tilley, Private Law, Public Law, and the Production of American Virtue (2020) 115 Northwestern University Law Review 270.

First posted 2020-12-28 17:18:51