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Private Law Exceptionalism? Part II: A Basic Difficulty with the Argument from Formal Equality*

Published online by Cambridge University Press:  06 February 2018

Avihay Dorfman
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Abstract

Contemporary discussions of private law theory often assume that parties in a private law interaction can relate as equals if, and only if, equality is cast in terms of formal equality (sometimes called transactional equality). I devote these pages to refute this conceptual view, showing that it does not draw correctly the map of the logical space in which conceptions of private law equality are located. Negatively, I argue that the formal conception of equality, most comprehensively defended by certain influential corrective justice theories, does not exhaust this space. Affirmatively, I argue that this space provides room for at least one more conception which I call ‘substantive equality’.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 31 , Issue 1 , February 2018 , pp. 5 - 32
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Copyright © Canadian Journal of Law and Jurisprudence 2018 

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References

1. This observation is made at very different levels of abstraction. See, for instance, Jules L Coleman, “Mistakes, Misunderstanding, and Misalignments” (2012) Yale LJ Online 121:541 at 553-54; Ernest J Weinrib, The Idea of Private Law (Harvard University Press, 1995) at 74 [Weinrib, Idea]; Kenneth S Abraham, The Liability Century: Insurance and Tort Law from the Progressive Era to 9/11 (Harvard University Press, 2008) at 214; Jeremy Waldron, “Moments of Carelessness and Massive Loss” in David G Owen, ed, Philosophical Foundations of Tort Law (Oxford University Press, 1995) 387 at 388; Alan Brudner with Jennifer M Nadler, The Unity of the Common Law, 2nd ed (Oxford University Press, 2013) at 141 n 75.

2. See Martin Stone, “The Significance of Doing and Suffering” in Gerald J Postema, ed, Philosophy and the Law of Torts (Cambridge University Press, 2001) at 156-57; Weinrib, Idea, supra note 1 at 82; Jules Coleman & Arthur Ripstein, “Mischief and Misfortune” (1995) 41 McGill LJ 91 at 109, 112 [Coleman & Ripstein]; Coleman, Jules L, “Second Thoughts and Other First Impressions” in Bix, Brian, ed, Analyzing Law: New Essays in Legal Theory (Clarendon Press, 1998) 304.Google Scholar

3. The notion of distributive or distributional equality is most frequently used by political philosophers, especially since the publication of John Rawls, A Theory of Justice (Belknap Press, 1971). See, e.g., GA Cohen, “On the Currency of Egalitarian Justice” (1989) 99:4 Ethics 906; Richard J Arneson, “Equality and Equal Opportunity for Welfare” (1989) 56:1 Philosophical Studies 77; David Miller, “Equality and Justice” in Andrew Mason, ed, Ideals of Equality (Blackwell, 1998) 21; Samuel Scheffler, “What is Egalitarianism?” (2003) 31:1 Philosophy & Public Affairs 5 at 13; Raz, Joseph, “On the Value of Distributional Equality” in de Wijze, Stephen et al, eds, Hillel Steiner and the Anatomy of Justice (Routledge, 2009) 22 Google Scholar at 23

4. See Ernest J Weinrib, Corrective Justice (Oxford University Press, 2012) at 21-29 [Weinrib, Corrective Justice].

5. Aditi Bagchi, “Distributive Justice and Contract” in Gregory Klass et al, eds, Philosophical Foundations of Contract Law (Oxford University Press, 2014) 193 at 193-95; Anthony Townsend Kronman, “Contract Law and Distributive Justice” (1980) 89 Yale LJ 472 at 499; Keren-Paz, Tsachi, Torts, Egalitarianism and Distributive Justice (Ashgate, 2007).Google Scholar

6. Peter Cane, “Distributive Justice and Tort Law” (2001) 2001:4 NZLR 401 at 412; John Gardner, “What Is Tort Law For? Part II: The Place of Distributive Justice” in John Oberdiek, ed, Philosophical Foundations of the Law of Torts (Oxford University Press, 2014) 335 [Gardner, Distributive]; Hanoch Sheinman, “Tort Law and Distributive Justice” in ibid 354 [Sheinman, Tort].

7. For a preliminary development, see Hanoch Dagan & Avihay Dorfman, “Just Relationships” (2016) 116:6 Colum L Rev 1395 [Dagan & Dorfman, Just Relationships].

8. The limited capacity of public law to tackle the issues of power, vulnerability, and accommodation in and around interactions between private persons is not merely a feature of our imperfectly just society. It also concerns the public law of a perfectly just society governed by an ideal theory of justice. See Hanoch Dagan & Avihay Dorfman, “Justice in Private: Beyond the Rawlsian Perspective” 36 Law & Phil [forthcoming in 2017] [Dagan & Dorfman, Justice].

9. See Samuel Scheffler, “Distributive Justice, the Basic Structure and the Place of Private Law” (2015) 35:2 Oxford J Legal Stud 213.

10. To be sure, the argument’s focus on equality in private law neither turns on nor carries immediate implications for any particular theory of the nature of rights (in law and morality).

11. Jules L Coleman, Risks and Wrongs (Oxford University Press, 1992) at 350-54, 303-28 [Coleman, Risks]; John Gardner, “What is Tort Law For? Part I: The Place of Corrective Justice” (2011) 30:1 Law & Phil [Gardner, Corrective Justice]; Gregory C Keating, “The Priority of Respect over Repair” (2012) 18 Legal Theory 293.

12. See also Dennis Klimchuk, “On the Autonomy of Corrective Justice” (2003) 23:1 Oxford J Legal Stud 49 at 51-52.

13. This is Gardner’s view. See John Gardner, “The Purity and Priority of Private Law” (1996) 46:3 UTLJ 459 at 469-70.

14. In a recent article, John Gardner has reintroduced Nozick’s attempt to recast distributive justice broadly to include every norm of allocating burdens and benefits except for norms of correcting injustice, namely norms that aim at undoing a given allocation. I believe that this Nozickian framework fails to illuminate the norms of justice that underlie private law (or tort law, in particular). Gardner’s depiction of corrective justice in terms of allocating burdens or benefits “back from one party to the other” mischaracterizes paradigmatic cases of private law—although it captures typical cases of restitution, it explains away basic cases involving compensatory damages. Gardner, Corrective Justice, supra note 11 at 12. Some ordinary torts cases, especially those pertaining to accidental infliction of injury on the person or property of another, do not aim at the reversal of a wrongful transaction in the sense discussed by Gardner. The injured person who wins her day in court is entitled to transfer some (certainly, not all aspects of) her loss to the injurer; but it is imprecise to cast this transfer in terms of allocating the loss back from the former to the latter. Indeed, since the injurer did not own or hold the “loss” prior to his injuring the victim, it is not clear how could the tort remedy be viewed as an instance of backward allocation.

15. Coleman & Ripstein, supra note 2; Weinrib, Idea, supra note 1 at ch 4; Weinrib, Corrective Justice, supra note 4 at ch 8; Arthur Ripstein, Private Wrongs (Harvard University Press, 2016) [Ripstein, Private]. It has been suggested that Coleman’s mature account of tort law focuses on the idea of corrective justice in connection of allocation of costs only. This is not the most sympathetic reconstruction of his scholarship (and is certainly at odds with the way he used to teach his torts class at Yale). See, e.g., Jules L Coleman, “Doing Away with Tort Law” (2008) 41 Loy LA L Rev 1149 at 1167 n 44.

16. Ripstein, Private, supra note 15 at ch 8; Weinrib, Corrective Justice, supra note 15 at 87-98.

17. In private law theory “justice” is usually understood as social justice (or justice in the institutionalized domain), rather than the personal virtue of human agents.

18. This observation has been developed, separately, by Jules Coleman and Ernest Weinrib. See, e.g., Jules L Coleman, “The Structure of Tort Law” (1988) 97 Yale LJ 1233 at 1241-42; Weinrib, Idea, supra note 1 at 9-10, 42-55.

19. See, e.g., Weinrib, supra note 1 at 19 (arguing that corrective justice and Kantian right with its focus on the equality of free purposive beings are “the arch-concepts by which one must conceptualize the features of private law if they are to constitute a coherent normative ensemble.”) [emphasis added]. In his more recent book, Weinrib has argued, in the course of discussing the idea of personality (i.e., the abstraction that underlies the equal standing of the parties qua bearers of the capacity for purposiveness), that “Personality encapsulates the normative standpoint from which private law has to view the parties if it is to regard them as having its rights and being subject to its duties.” Weinrib, Corrective Justice, supra note 4 at 24 [emphasis added]; see also Arthur Ripstein, “Civil Recourse and Separation of Wrongs and Remedies” (2011) 39:1 Fla St UL Rev 163 at 181 [Ripstein, Civil] (noting that “the conceptual structure of private right can only be made to apply to particulars if it is applied in the same way for everyone.”)

20. For more on the corrective justice account of division of responsibility between society and the individual, see Arthur Ripstein, “The Division of Responsibility and the Law of Tort” (2004) 72:5 Fordham L Rev 1811; Weinrib, Corrective Justice, supra note 4 at ch 8.

21. Weinrib, Idea, supra note 1 at 76 (“The most distinctive feature of private law, expressed both in its procedures and in its doctrines, is the bipolarity of the relationship between the parties.”) See also Weinrib, Corrective Justice, supra note 4 at 19-20. For civil recourse theorists, John CP Goldberg, “The Constitutional Status of Tort Law: Due Process and the Right to a Law for the Redress of Wrongs” (2005) 115:3 Yale LJ 524 at 601; Benjamin C Zipursky, “Philosophy of Private Law” in Jules L Coleman & Scott Shapiro, eds, The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2002) 623 at 642, 645-48, 651.

22. Avihay Dorfman, “Private Law Exceptionalism? Part I: A Basic Difficulty with the Arguments from Bipolarity and Civil Recourse” (2016) 35:2 Law & Phil 165 [Dorfman, Private Law].

23. The argument is developed in ibid.

24. Weinrib argues that “we cannot understand the normative character of corrective justice until we elucidate the normative significance of its equality.” Weinrib, Idea, supra note 1 at 77.

25. Weinrib, following Aristotle, provides a slightly different version: “What conception of the parties would put them on an equal footing?” Weinrib, Idea, supra note 1 at 80.

26. Ibid at 77-83; Ripstein, Civil, supra note 19 at 181.

27. See sources in note 19 above.

28. Dorfman, Private Law, supra note 22.

29. See, e.g., Fried, Charles, Contract as Promise: A Theory of Contractual Obligation (Harvard University Press, 1981)Google Scholar at 106.

30. Note that the argument is not that a distributive turn can never be desirable. Rather, the point is that pursuing distributive justice will turn ‘private law’ into a qualitatively different thing.

31. See Gardner, Distributive, supra note 6; Sheinman, Tort, supra note 6.

32. Gardner, Distributive, supra note 6 at 336-37; Sheinman, Tort, supra note 6 at 379, 380.

33. Gardner, Distributive, supra note 6 at 342.

34. Weinrib, “Private Law and Public Right” (2011) 61:2 UTLJ 191 at 196; see also Ripstein, Arthur, Force and Freedom: Kant’s Legal and Political Philosophy (Harvard University Press, 2009)CrossRefGoogle Scholar at 238, 251-52 [Ripstein, Force].

35. Gardner, Distributive, supra note 6 at 338-44.

36. There may well be a genuine disagreement between Gardner and Sheinman, on the one hand, and Weinrib and Ripstein, on the other, on the question of whether the “distributive” considerations necessary to achieve systematicity can transcend the demands of formal equality defended by the latter. Corrective justice theorists (such as Weinrib and Ripstein) cast the legitimate authority of courts (or legislatures) to achieve systematicity in terms of pinning down in an impartial manner the pre-political demands of formal equality and freedom. By contrast, both Gardner and Sheinman can allow for a far more generous approach to the character and the scope of the discretion that judges and legislatures can exercise in the course of correcting injustices, in which case formal equality may count as one consideration among others.

37. Weinrib, Idea, supra note 1 at 83.

38. At least in Dworkin’s case, the scope of the defense does not include private law. See Dworkin, Ronald, Law’s Empire (Harvard University Press, 1986)Google Scholar at 296, 299.

39. I do not deny the possibility of adding more dimensions, thereby increasing the conceptual menu of conceptions of equality. However, my argument does not turn on this possibility.

40. To fix ideas, consider a non-waivable, implied warranty of habitability (in the landlord-tenant context) or warranty of safety (in products liability and consumer protection contexts). These are, in my view, private law interactions that do away with formal equality. The reason why these are private, not public, law interactions is that they govern the horizontal interaction between private persons, rather than the vertical one between the state (including its agents) and its subjects. And while they may have important distributive consequences (and so does corrective justice’s formal equality), they both seem to conceive of the landlord/tenant or manufacturer/consumer interaction as a source of concern quite apart from its aggregate effects in terms of distributive justice or welfare on society as a whole. As I argue below, the 1b conception is implicit in other key areas of private law such as in the manner in which tort law approaches the distinction between defendant-care and plaintiff-care (or negligence and comparative negligence).

41. The ideal of one-person-one-vote can be viewed as giving effect to this conception in the domain of political equality. Certain libertarian accounts of distributive equality may be reducible to this conception as well.

42. See Weinrib, Corrective Justice, supra note 19.

43. The general possibility of other forms of justice is discussed in Gardner, Corrective Justice, supra note 11 at 8-9. Elsewhere, I defend a third conception of justice, relational justice, and argues that it explains and justifies key features of private law. See Dagan & Dorfman, Just Relationships, supra note 7.

44. For a general criticism of formal equality, see Karl Marx, “Critique of the Gotha Program” in Lawrence H Simon, ed, Karl Marx: Selected Writings (Hackett, 1994) 315 at 320-21. For a critical exploration of formal equality (or abstract personality) in the torts context, see, e.g., Stephen R Perry, “The Moral Foundation of Tort Law” (1992) 77:2 Iowa L Rev 449 at 481-82.

45. See Ripstein, Force, supra note 34 at 42-43.

46. Consent is not entirely irrelevant to involuntary interaction (consider the doctrine of secondary assumption of risk). It is just that its role is not as prominent as in voluntary ones.

47. See Coleman & Ripstein, supra note 2 at 109, 112; Ripstein, Force, supra note 34 at 171.

48. Substandard competency is different (i.e., less acute) than complete incapacity.

49. See, e.g., Weinrib, Idea, supra note 1 at 148, 177-79; Jules Coleman, “Tort Law and Tort Theory: Preliminary Reflections on Method” in Postema, Gerald J, ed, Philosophy and the Law of Torts (Cambridge University Press, 2001) 183 CrossRefGoogle Scholar at 206; Ripstein, Civil, supra note 19 at 181.

50. Ripstein, Force, supra note 34 at 362-63.

51. Weinrib, Idea, supra note 1 at 58.

52. Ibid at 82.

53. Daniel Markovits, “Promise as an Arm’s Length Relation” in Hanoch Sheinman, ed, Promises and Agreements: Philosophical Essays (Oxford University Press, 2011) 295 at 307, 312.

54. Ripstein, Civil, supra note 19 at 181.

55. Cf Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1977) at 227 (distinguishing between equal treatment, which is a variation on formal equality, and treating persons as equals, which is a basic pillar of substantive equality). To be sure, my account does not share Dworkin’s controversial view that distributional equality is equality’s only or main concern (or that realizing substantive equality is the state’s, rather than the individual’s, responsibility).

56. Compare with Ripstein, Force, supra note 34 at 39.

57. The power imbalance at issue is not wholly contingent. There are reasons to believe (supported by social science studies) that it is built into the structure of the interaction, including in the case of highly-skilled technical professionals. See Matt Marx, “The Firm Strikes Back: Non-compete Agreements and the Mobility of Technical Professionals” (2011) 76:5 American Sociological Rev 695 at 706.

58. For doctrinal and theoretical discussion of the past and present doctrine of assumption of risk in the employment context, see Avihay Dorfman, “Assumption of Risk, After All” (2014) 15:2 Theoretical Inquiries in Law 293. Note that although modern workplace safety is partially regulated by workers’ compensation schemes and safety regulations, the tort duty of due care in connection with providing safe working environment has remained in place. See, e.g., Smith v Western Elec Co (1982) 643 SW2d 10 at 12 (Mo Ct App).

59. There exists a second-order question concerning the wrong of discrimination in the situation described above: Must this wrong be characterized as an intentional tort? It is beyond the scope of the current argument to explain why, in my view, the answer should be that the wrong of discrimination may also cover negligent discrimination.

60. Why, then, modern antidiscrimination laws typically include a list of suspected classes or human traits? On the proposed account, enumerating certain classes helps to ensure effective guidance to the law’s addressees and effective constraint on judicial and administrative exercise of discretion. In that, these laws can defuse some potentially intrusive and overly demanding aspects of accommodation by setting out clear categories, frameworks, and doctrines with which individual persons can adequately discharge their duties, on the one hand, and exercise their rights of accommodation, on the other. The enumeration technique is best understood as a way station on the road to a more inclusive commitment for realizing the demands of substantive equality in relations among private persons.

61. I elaborate on this claim in Dagan & Dorfman, Justice, supra note 8.

62. The general claim that substantive equality is not reducible to distributive equality has been variously defended in Iris M Young, Justice and the Politics of Difference (Princeton University Press, 1990); Elizabeth Anderson, “What Is the Point of Equality?” (1999) 109:2 Ethics 287; Samuel Scheffler, Equality and Tradition: Questions of Value in Moral and Political Theory (Oxford University Press, 2010) at chs 7-8.

63. A representative statement of this tendency (by one of its most important proponents) is Richard Arneson, “Egalitarianism” in The Stanford Encyclopedia of Philosophy (Summer 2013 ed) by Edward N Zalta (http://plato.stanford.edu/entries/egalitarianism/).

64. Some liberal egalitarians seem to suggest, in the spirit of distributive equality, that some choices—such as religious commitments—should be allowed to fall on society as a matter of justice. See Seana Valentine Shiffrin, “Egalitarianism, Choice-Sensitivity, and Accommodation” in RJ Wallace et al, eds, Reason and Value: Themes from the Moral Philosophy of Joseph Raz (Oxford University Press, 2004) 270 at 302; Daniel Markovits, “Luck Egalitarianism and Political Solidarity” (2008) 9:1 Theor Inq L 151 at 177-81.

65. See further Dagan & Dorfman, Just Relationships, supra note 7; Dagan & Dorfman, Justice, supra note 8.

66. I will not discuss the distinction between nonfeasance and misfeasance here. Elsewhere, I argue, negatively, that the corrective justice defense of this distinction is conclusory and, affirmatively, that a commitment to the formal conception of equality cannot account for some of its major exceptions (such as the doctrine of mistaken payment in unjust enrichment law). See Dagan & Dorfman, Just Relationships, supra note 7.

67. E.g., Weinrib, Idea, supra note 1 at 148, 177-79.

68. See, e.g., Peter Benson, “The Unity of Contract Law” in Peter Benson, ed, The Theory of Contract Law: New Essays (Cambridge University Press, 2001) 118 at 130-31 [Benson, Unity]; Daniel Markovits, “Contract and Collaboration” (2004) 113 Yale LJ 1417 at 1450.

69. See Smith v Leech Brain & Co [1962] 2 QB 405 at 414.

70. That is, the maxim in question applies not only to the legal causation (or damages) element of the negligence cause of action, but also—with necessary modifications—to the breach element. It may be protested at this point that there exists a qualitative difference between the maxim’s application to the two respective elements. The worry is that the plaintiff’s vulnerabilities need not be foreseeable at all for the purpose of determining the scope of liability for negligent infliction of injury; but when courts address the more preliminary question of whether the defendant’s conduct counts as negligent, the vulnerabilities of the plaintiff count only insofar as they are reasonably foreseeable. However, this difference is overdrawn. The requirement of reasonable foreseeability that is relevant for determining how much care is due does not demand that the defendant know, or even could know, what are the exact vulnerabilities of each and every particular plaintiff. What is required is that the possible presence, say, of physically disabled persons becomes a matter of, roughly speaking, statistical foreseeability. Statistical foreseeability reflects the frequency and distribution of a given vulnerability across society. Tortfeasors are not expected to know the exact numbers, to be sure, but they are certainly expected to be aware of the very existence of vulnerable persons in their society and of the possibility that some of them might happen to be within the zone of foreseeable danger relevant to these tortfeasors’ risky conduct. See, e.g., Haley v London Electricity Board [1965] AC 778 at 791, 806 (per Lords Reid and Hodson, respectively).

71. I shall set to one side the special case of children. On this matter see Mayo Moran, Rethinking the Reasonable Person (Oxford University Press, 2003) 135-38.

72. I describe these two effects of comparative (or victim) fault in some detail to forestall misunderstandings. Some treat comparative fault as if it is morally unrelated to considerations of primary (or injurer) fault. See, e.g., Robert Stevens, “Should Contributory Fault be Analogue or Digital?” in Andrew Dyson, James Goudkamp & Frederick Wilmot-Smith, eds, Defenses in Tort (Hart, 2015) 247 at 253; Gregory C Keating, “Reasonableness and Rationality in Negligence Theory” (1996) 48:2 Stan L Rev 311 at 371. On this view, where negligence on the part of the injurer may express a moral failure, negligence on the part of the victim can only reflect imprudence toward oneself. The discussion in the main text below shows why this view misses the intimate connection between the two considerations of negligence (the injurer’s and the victim’s). That is, every time courts determine the reasonableness of the conduct of either one—the injurer or the victim—they necessarily engage in the business of fixing the terms of the interaction between both.

73. The argument is not limited to automobile accidents; it applies with equal force to many other contexts of negligent infliction of bodily injury. See, e.g., Hunt v Ohio Dept of Rehabilitation & Correction (1997) 696 NE 2d 674 (Ohio Ct Cl).

74. Ripstein’s recent account of comparative negligence makes this aspect (of helping to define the scope of liability) central, though he does not discuss the former one. Ripstein, Private, supra note 15 at 105-06, 121-22.

75. See, e,g, Ripstein, Civil, supra note 19 at 181 (“The unusual sensitive plaintiff gets no solace from the law. Nor does the incompetent who tries his best… Instead, the law purports to hold everyone to the same standards on the grounds that everyone has the same formal right to the security of what he or she already has.”) See also Coleman & Ripstein, supra note 2 at 109, 112; Weinrib, Idea, supra note 1 at 177-79; Ripstein, Force, supra note 34 at 171.

76. Corrective justice theorists are quite ambivalent about the possibility of justifying the departure from the objectively-fixed standard of due care. On the one hand, they invoke formal equality against such a departure. See Weinrib, Idea, supra note 1 at 169 n 53(1); Ripstein, Civil, supra note 19 at 181. On the other hand they argue for the possibility, under the appropriate circumstances, of reconciling formal equality with a subjectively-fixed standard. See Arthur Ripstein, Equality, Responsibility, and the Law (Cambridge University Press, 1999) at 111-13 [Ripstein, Equality]; Weinrib, Idea, supra note 1 at 183 n 22. I take up the latter approach in the main text below.

77. A version of this argument appears in Ripstein, Equality, supra note 76 at 111-13.

78. Avihay Dorfman, “Negligence and Accommodation” (2016) 22:2 Legal Theory 77 at 90-92, 119-21 [Dorfman, Negligence]. There, I surveyed all the cases cited in the canonical U.S. sources (such as the second and third Restatements as well as Prosser’s and Dobbs’ respective treatises) in connection with the standard of care in the context of physical disability. The study shows that, contrary to the conventional wisdom, injurers are expected to take additional care in the face of disabled victims, irrespective of whether they (the injurers) are themselves disabled. I then took up the case of mental disability only to find some recurring patterns and trends. It appears that my findings (concerning physical disabilities) are not peculiarly American. For English tort law, see Peter Cane, Atiyah’s Accidents, Compensation and the Law, 8th ed (Cambridge University Press, 2013) at 53.

79. Daly v Liverpool Corporation [1939] 2 All ER at 142.

80. Ibid.

81. Elsewhere I argue that considerations of efficiency cannot account for this requirement. Dorfman, Negligence, supra note 78 at 96-103.

82. The assertion about the social responsibility to relieve individuals of some unfortunate circumstances does not turn on distinctively liberal-egalitarian intuitions about distributional equality. See, in particular, Robert Nozick, Anarchy, State, and Utopia (Basic Books, 1974) at 78-79, 82-83, 87, 115.

83. Focusing on difference in vulnerabilities in the context of negligence law implies that physical disability, or other forms of human disability, should not be accommodated categorically. To summarize an argument I develop in Dorfman, Negligence, supra note 78: First, the defendant’s disability does not typically justify accommodation (if anything, it is the plaintiff’s disability, given her vulnerability to bodily injury rather than to impediments to the pursuit of ends, that matters more); and second, the plaintiff’s disability does not call for accommodation when there is no imbalance in the respective vulnerabilities of the interacting parties (as represented most vividly in the tort of private nuisance and, in particular, the standard of ‘reasonable interference’ that lies at its doctrinal center; see, e.g., Rogers v Elliott (1888) 15 NE 768 (Mass). Typically, both parties in a private-nuisance interaction seem to be equally vulnerable in the sense that their respective pursuits of land-related ends come into conflict).

84. For a leading discussion of this point, see Cardozo’s analysis of the standard of due care in Adams v Bullock (1919) 125 NE 93 (NY).

85. In addition to the brief discussion in note 83, I take up some of these and other questions in Dorfman, Negligence, supra note 78.

86. SM Waddams, “Unconscionability in Contracts” (1976) 39:4 MLR 369 at 369.

87. See Patterson v Walker-Thomas Furniture Co Inc (1971) 277 A2d 111 at 113 (DC CA). For a somewhat different formulation see Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 459, 462 (Austl.); and notice the important modification introduced by Kakavas v Crown Melbourne LTD [2013] HCA 25.

88. Peter Benson has developed the most sophisticated and impressive attempt to defend the unconscionability doctrine on grounds of formal equality. See Benson, Unity, supra note 68 at 185-98. Benson argues that the doctrine is best viewed as protecting the presumed intentions of the parties to engage in the exchange of equal value where the things exchanged are commodities. Ibid at 185. The competitive market price serves as the baseline against which this value is fixed, in which case contractual parties are price-takers. Ibid at 190. In that, however, Benson argues for a limited construal of the unconscionability doctrine. His argument cannot account for the doctrine’s expansion beyond the realm of commodities and, especially, its application to cases where the measure of competitive market prices seems not merely uncertain but rather unavailable (even given Benson’s relaxed definition of competitive market price (ibid at 190) in terms of a “changing range of going market price”). Courts deem unconscionable contract terms that are not easily reducible to commodities; further, courts sometime find contract terms unconscionable without resorting to a (non-existing) competitive market price. For example, consider terms governing the contract’s remedial scheme (Glassford v BrickKicker (2011) 35 A3d 1044 (Vt)); contracts with exclusive jurisdiction provisions (Paragon Homes v Carter (1968) 288 NYS2d 817 (Sup Ct)); and contracts containing mandatory employment arbitration clauses (Armendariz v Foundation Health Psychcare Inc (2000) 6 P.3d 669 (Cal). These examples, and more general statements such as the one in the Restatement (Second) of Contracts §208 cmn a (1981), raise the suspicion that the class of cases on which Benson focuses in developing his defense of the doctrine—viz., cases of gross deviation from competitive market price—is a mere surface manifestation of a deeper worry concerning substantive, rather than formal, inequality among contractual parties.

89. I qualify the claim about the possible tension between unconscionability and formal equality to a broad construal of the doctrine for reasons specified in the previous note.

90. Private necessity, as the famous case of Vincent v Lake Erie Transp Co (1910) 124 NW 221 [Vincent] demonstrates, applies not only to cases where the person of the defendant is at risk (as in Ploof v Putnam (1908) 71 A 188 (Vt), but rather also when only her property is at risk.

91. To an important extent, the distance between the doctrine of unconscionability and private necessity is smaller than what is typically believed. To see that, consider maritime salvage cases in which courts are reluctant to enforce the actual bargain if it is not “fair and just” given the special circumstances of the situation. As the Court of Appeal observes, “the fundamental rule of administration on maritime law” tackles the problem of “urgent” situations whereby “the parties cannot be truly said to be on equal terms as to any agreement they may make with regard to them.” Akerblom v Price (1881) 7 QBD 129, 132.

92. My analysis assumes, with the Vincent court, that the dock-owner’s right to exclude had not run out prior to the situation that triggered the boat-owner’s entitlement to decide unilaterally to use the dock. Indeed, it is the unusual weather condition that led the court to assert that “the ordinary rules regulating property rights were suspended.” Vincent, supra note 90 at 221.

93. Indeed, such considerations typically fall outside the purview of the private necessity doctrine. See Southwark v Williams [1971] Ch 734 at 744 (AC).

94. The privilege (i.e., of not being subject to the owner’s right to exclude) is partial only, since the right to use another’s property comes with a duty to make good on the damage done to this property. In his recent book, Ripstein explains the Vincent case in terms of the need to reconcile the dock owner’s right to exclude with the boat’s owner right to preserve his or her chattel in the face of a coming storm. Ripstein, Private, supra note 15 at 146-55. Ripstein, however, does not provide an argument as to why reconciliation must be made at all—his emphasis on the strict liability aspect of trespass to land and chattels seems to counsel against making any allowances for those who enter or use another’s land without permission. After all, the point of strict liability (and, more abstractly, Ripstein’s philosophical distinction between choice and wish) is to exclude even ‘good’ reasons to use another’s land from legal considerations. And even if reconciliation must be sought, it is not clear why it has to be made in this particular way rather than in some other way.

95. Criminal law presents a hard case (because it is part of public law, but it may not be best explained in terms of considerations of distributive equality and distributive justice). One possible way out is to view criminal law, or some paradigm areas of criminal law, as essentially add-on to private law.

96. Corrective justice theorists (and some liberal-egalitarian political philosophers, more generally) defend this division of responsibility between the state and private persons. I take stock of this dichotomous approach in Dagan & Dorfman, Justice, supra note 8.

97. See sources in note 44 above.

98. See text accompanying notes 29-30 above.