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Hanoch Dagan, Avihay Dorfman, Against Private Law Escapism: Comment on Arthur Ripstein, Private Wrongs, Jerusalem Review of Legal Studies, Volume 14, Issue 1, December 2016, Pages 37–51, https://doi.org/10.1093/jrls/jlw014
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Extract
I. Introduction
Can a comprehensive theory of tort law evade the ultimate test of our moral intuitions (or reflective equilibrium)? We shall argue, first, that Ripstein’s illuminating Private Wrongs, including in particular his organizing distinctions between misfeasance and nonfeasance, between relation and comparison, and between horizontal and vertical justice, cannot escape that test; and, second, that his theory fails to meet such a test.
The Comment proceeds in four stages. We first lay out the basic structure of Ripstein’s theory of the justice of tort law and the nature of the argument he deploys in developing this theory (Part II). We then suggest that, and explain why, his effort to derive the content of the justice of tort law by taking legal doctrine at face value must fail (Part III). The next two stages of the argument consider an alternative reading of Private Wrongs (Part IV) and a broader assessment of the justice of tort law against the background of public law (Part V).
