Private Law, Public Law, and the Production of American Virtue

Abstract

This Essay, contributed to a festschrift celebrating the scholarship of Marshall Shapo, 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. The piece summarizes the intellectual history that has led legal academics to treat public law as the only legal intervention applicable to social ills like racism. It then pivots to survey how disciplines outside law understand the component parts of racism and the most effective responses to them. Sociologists have observed that systemic drivers of racism which play out in public are made possible in large part by individual drivers of racism which play out in private; these include, “most insidiously” white denial and apathy about racial inequality. Political scientists have suggested that a powerful mechanism to address this private racism is the centering of Black people as narrators of their life experiences and the positioning of white people as attentive listeners to those stories. The piece goes on to suggest that tort litigation has a unique ability to facilitate this process, and thus may produce distinct shifts in private attitude that complement the systemic reforms at the heart of public law. Finally, in an act of legal archaeology, the piece shows these processes at work in the iconic battery case of Fisher v. Carrousel Motor Hotel, Inc. In conclusion, it suggests that Marshall Shapo’s entire body of work can be understood as a commitment to tort’s virtue-production capacity.

Keywords: Tort, public law, private law, tort and social justice, Fisher v. Carrousel Motors, jury, legal archaeology, legal history