Andrew S. Gold (DePaul University College of Law) has posted Private Rights and Private Wrongs (Michigan Law Review, Forthcoming) on SSRN. Here is the abstract:
This essay reviews Arthur Ripstein’s new book, Private Wrongs (Harvard University Press, 2016). Private Wrongs will be a landmark in tort theory, as it brilliantly applies Ripstein’s Kantian account of tort law to legal doctrine. At the center of the book’s argument is the view that one person should not get to be in charge of another. This essay will raise doubts whether tort law consistently shares this view, at least in the United States. In particular, self-help is plausibly seen as a counter-example (and especially so in contexts like recaption of chattels). Moreover, the morality criterion that private law theorists commonly adopt is at best inconclusive on self-help: Lockean alternatives to Ripstein’s theory – like those developed by civil recourse theorists – are well within the moral mainstream. A justice criterion is similarly inconclusive on self-help, although it raises very interesting issues concerning the interrelationship of norms of justice. Yet, even if Private Wrongs does not fully capture the phenomena of tort law, it nonetheless provides important insights across a wide range of tort law settings. Indeed, while the book itself does not adopt a pluralist perspective, Private Wrongs can valuably contribute to a pluralist understanding of the law of torts.
And here is a link to Private Wrongs.