The distributive foundation of corrective justice

Michigan Law Review

Volumn 98, Issue 1, 1999, Pages 138-165

  Dagan, Hanoch ^a  

^a NONE

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EID: 0041592990     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290197     Document Type: Article

References (158)

1. See, e.g., GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1970); Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982); Anthony T. Kronman Contract Law and Distributive Justice, 89 YALE L.J. 472 (1980); Gregory Keating, Freedom and Fairness in the Tort Law of Accidents (1998) (unpublished manuscripts, on file with author).
2. See, e.g., GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1970); Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982); Anthony T. Kronman Contract Law and Distributive Justice, 89 YALE L.J. 472 (1980); Gregory Keating, Freedom and Fairness in the Tort Law of Accidents (1998) (unpublished manuscripts, on file with author).
3. See, e.g., GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1970); Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982); Anthony T. Kronman Contract Law and Distributive Justice, 89 YALE L.J. 472 (1980); Gregory Keating, Freedom and Fairness in the Tort Law of Accidents (1998) (unpublished manuscripts, on file with author).
4. See, e.g., GUIDO CALABRESI, THE COSTS OF ACCIDENTS (1970); Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law, With Special Reference to Compulsory Terms and Unequal Bargaining Power, 41 MD. L. REV. 563 (1982); Anthony T. Kronman Contract Law and Distributive Justice, 89 YALE L.J. 472 (1980); Gregory Keating, Freedom and Fairness in the Tort Law of Accidents (1998) (unpublished manuscripts, on file with author).
5. See, e.g., ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995); see also JULES L. COLEMAN, RISKS AND WRONGS (1992); George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972).
6. See, e.g., ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995); see also JULES L. COLEMAN, RISKS AND WRONGS (1992); George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972).
7. See, e.g., ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995); see also JULES L. COLEMAN, RISKS AND WRONGS (1992); George P. Fletcher, Fairness and Utility in Tort Theory, 85 HARV. L. REV. 537 (1972).
8. See WEINRIB, supra note 2, at 11-14.
9. HANOCH DAGAN, UNJUST ENRICHMENT: A STUDY OF PRIVATE LAW AND PUBLIC VALUES (1997) [hereinafter DAGAN, UNJUST ENRICHMENT].
10. Ernest J. Weinrib, Restitutionary Damages as Corrective Justice, 1 THEORETICAL INQUIRIES IN LAW (forthcoming 1999) [hereinafter Weinrib, Ristitutionary Damages].
11. For an application of this theory to the various restitutionary schemes in newly emerging market economies, see Michael Heller & Christopher Serkin, Revaluing Restitution: From the Talmud to Postsocialism, 97 MICH. L. REV. 1385 (1999) (reviewing DAGAN, UNJUST ENRICHMENT, supra note 4).
12. Ethos talk, to be sure, is often messy and subject to disputes. However, it is possible to identify in every society - at least on the level of generality in which the law operates -some central tendencies that substantially define its political culture.
13. I say more on limited institutional altruism, in the context of the altruistic intermeddler, in Hanoch Dagan, In Defense of the Good Samaritan, 97 MICH. L. REV. 1152, 1167-73 (1999).
14. A "distributive scheme" is any ratio between persons and things, or any proportionate division of benefits or burdens, among a group of potential recipients.
15. For previous claims that restitution theory must be based on corrective justice, see Kit Barker, Unjust Enrichment: Containing the Beast, 15 OXFORD J. LEGAL STUD. 457, 468-74 (1995); Gregory Bordan, The Law of Construction Privileges: Corrective Justice or Distributive Justice, 2 CAN. J.L. & JURIS. 57, 67 (1989); Andrew S. Burrows, Contract, Tort and Restitution - A Satisfactory Division or Not?, 99 L.Q. REV. 217, 256 (1983).
16. For previous claims that restitution theory must be based on corrective justice, see Kit Barker, Unjust Enrichment: Containing the Beast, 15 OXFORD J. LEGAL STUD. 457, 468- 74 (1995); Gregory Bordan, The Law of Construction Privileges: Corrective Justice or Distributive Justice, 2 CAN. J.L. & JURIS. 57, 67 (1989); Andrew S. Burrows, Contract, Tort and Restitution - A Satisfactory Division or Not?, 99 L.Q. REV. 217, 256 (1983).
17. For previous claims that restitution theory must be based on corrective justice, see Kit Barker, Unjust Enrichment: Containing the Beast, 15 OXFORD J. LEGAL STUD. 457, 468- 74 (1995); Gregory Bordan, The Law of Construction Privileges: Corrective Justice or Distributive Justice, 2 CAN. J.L. & JURIS. 57, 67 (1989); Andrew S. Burrows, Contract, Tort and Restitution - A Satisfactory Division or Not?, 99 L.Q. REV. 217, 256 (1983).
18. Weinrib, Restitutionary Damages, supra note 5 (manuscript at 6, on file with author).
19. Id. at 3.
20. Id. at 4.
21. Id. 15. Id. at 5.
22. Id. at 6.
23. Id. at 5.
24. Id. at 3, 5.
25. Weinrib refers to the proposal that "the victim of a tort should be allowed restitution of all wrongful gains" as the Goff-Jones principle. See id. at 9 (citing BURROWS, THE LAW OF RESTITUTION 721 (1993)). Anglophiles might use the old term waiver of tort" to describe the plaintiff's choice not to sue for compensation.
26. See Weinrib, Restitutionary Damages, supra note 5 (manuscript at 12-14, on file with author). Weinrib analogizes to tort law, where proximate cause and duty limit a defendant's liability even for harms that she caused.
27. Id. at 10.
28. Id. at 11.
29. Id. at 10.
30. Id. at 15.
31. See id. at 14.
32. See WEINRIB, supra note 2, at 3-14.
33. Weinrib, Restitutionary Damages, supra note 5 (manuscript at 48, on file with author). In The Idea of Private Law, Weinrib claims that "[w]hereas the category of distributive justice encompasses different instantiating distributions from which the distributor may choose, the category of corrective justice is a single conception whose meaning is judicially elaborated." WEINRIB, supra note 2, at 212. Hence, "qua realization of corrective justice, private law has no political aspect"; it is "purely juridical and completely nonpolitical." Id. at 212, 214.
34. Weinrib, Restitutionary Damages, supra note 5 (manuscript at 8, on file with author).
35. Id. 30. Id. at 16.
36. Id. at 17.
37. Id. at 32-33.
38. See id. at 21-22.
39. Id. at 24.
40. See id. at 29.
41. See RONALD DWORKIN, LAW'S EMPIRE (1986).
42. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 6-8; Weinrib, Restitutionary Damages, supra note 5 (manuscript at 6-7, on file with author).
43. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 6-8; Weinrib, Restitutionary Damages, supra note 5 (manuscript at 6-7, on file with author).
44. Conceptualizing law as a dynamic justificatory practice that evolves along the lines of fit and justification has its origins in KARL N. LLEWELLYN, THE COMMON LAW TRADITION 36-38, 44, 60, 222-23 (1960).
45. My account has been subject to the criticism that it overlooks the explanatory force of the legal community's ethos. See Hector L. MacQueen, Unjust Enrichment, 47 INTL. & COMP. L.Q. 740, 741 (1998) (reviewing DAGAN, UNJUST ENRICHMENT, supra note 4); Craig Rotherham, Unjust Enrichment and the Autonomy of Law: Private Law as Public Morality, 61 MOD. L. REV. 580, 587, 588 (1998) (reviewing DAGAN, UNJUST ENRICHMENT, supra note
46. My account has been subject to the criticism that it overlooks the explanatory force of the legal community's ethos. See Hector L. MacQueen, Unjust Enrichment, 47 INTL. & COMP. L.Q. 740, 741 (1998) (reviewing DAGAN, UNJUST ENRICHMENT, supra note 4); Craig Rotherham, Unjust Enrichment and the Autonomy of Law: Private Law as Public Morality, 61 MOD. L. REV. 580, 587, 588 (1998) (reviewing DAGAN, UNJUST ENRICHMENT, supra note
47. Although stiff legal customs, like the internal dynamics of the legal community and the self-interest of lawyers, can sometimes explain the law, they can rarely justify it. Neither Weinrib nor I consider those factors.
48. Cf. Peter Benson, The Basis of Corrective Justice and Its Relation to Distributive Justice, 77 IOWA L. REV. 515 (1992) (arguing that the entitlement to corrective justice is created by moral rights of the individual to use what he owns and not by any scheme to distribute a common good among individuals by merit).
49. To be sure, some right to the income from property, once called "a surrogate of [the right to] use," is a prevalent incident of the liberal conception of ownership. See TONY HONORÉ, Ownership, in MAKING LAW BIND: ESSAYS LEGAL AND PHILOSOPHICAL 161, 169-70 (1987). However, this descriptive observation cannot yield Weinrib's proposition that the right to income is essential to property.
50. In fairness to Weinrib, his account of property, which is based on his interpretation of Hegel's theory, perceives property as the embodiment of the agent's freedom of the will. Hence, the limits of one person's embodiment are the limits of another person's freedom. See Ernest J. Weinrib, Right and Advantage in Private Law, 10 CARDOZO L. REV. 1283, 1286-87, 1289-94, 1303 (1989); see also Peter Benson, Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory, 10 CARDOZO L. REV. 1077, 1163-77 (1989). The notion of a containment relation between resources and selves, from which emerges the metaphor of an absolute and uniform presence of the self in each and every resource one holds, is rather obscure. Hence, instead of following this interpretation of the Hegelian personhood theory of property, and without taking any view respecting which is the correct interpretation of Hegel, Unjust Enrichment follows other neo-Hegelian accounts of property, that insist that the intensity of our connection of reflection-and-attachment with resources we possess varies according to the particular resource. See MARGARET JANE RADIN, Property and Personhood, in REINTERPRETING PROPERTY 35 (1993); JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 343-89 (1988). In any event, my point here is not that the property theory 1 endorse is superior to Weinrib's. Rather, all that is required for my current purposes is the much more modest contention that Weinrib's account of property is but one possible (although, I must add, in my view not very plausible) understanding of the concept of property. Since the choice among rival conceptions of property is normative and distributive, the possibility of a non- distributive conception of property (which Weinrib et al. celebrate) does not undermine the impossibility of a nondistributive private law. Cf. Roscoe Pound, A Survey of Social Interests, 57 HARV. L. REV. 1, 6-9 (1943) (discussing individualism as one possible option of public policy).
51. In fairness to Weinrib, his account of property, which is based on his interpretation of Hegel's theory, perceives property as the embodiment of the agent's freedom of the will. Hence, the limits of one person's embodiment are the limits of another person's freedom. See Ernest J. Weinrib, Right and Advantage in Private Law, 10 CARDOZO L. REV. 1283, 1286-87, 1289-94, 1303 (1989); see also Peter Benson, Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory, 10 CARDOZO L. REV. 1077, 1163-77 (1989). The notion of a containment relation between resources and selves, from which emerges the metaphor of an absolute and uniform presence of the self in each and every resource one holds, is rather obscure. Hence, instead of following this interpretation of the Hegelian personhood theory of property, and without taking any view respecting which is the correct interpretation of Hegel, Unjust Enrichment follows other neo-Hegelian accounts of property, that insist that the intensity of our connection of reflection-and-attachment with resources we possess varies according to the particular resource. See MARGARET JANE RADIN, Property and Personhood, in REINTERPRETING PROPERTY 35 (1993); JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 343-89 (1988). In any event, my point here is not that the property theory 1 endorse is superior to Weinrib's. Rather, all that is required for my current purposes is the much more modest contention that Weinrib's account of property is but one possible (although, I must add, in my view not very plausible) understanding of the concept of property. Since the choice among rival conceptions of property is normative and distributive, the possibility of a non- distributive conception of property (which Weinrib et al. celebrate) does not undermine the impossibility of a nondistributive private law. Cf. Roscoe Pound, A Survey of Social Interests, 57 HARV. L. REV. 1, 6-9 (1943) (discussing individualism as one possible option of public policy).
52. In fairness to Weinrib, his account of property, which is based on his interpretation of Hegel's theory, perceives property as the embodiment of the agent's freedom of the will. Hence, the limits of one person's embodiment are the limits of another person's freedom. See Ernest J. Weinrib, Right and Advantage in Private Law, 10 CARDOZO L. REV. 1283, 1286-87, 1289-94, 1303 (1989); see also Peter Benson, Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory, 10 CARDOZO L. REV. 1077, 1163-77 (1989). The notion of a containment relation between resources and selves, from which emerges the metaphor of an absolute and uniform presence of the self in each and every resource one holds, is rather obscure. Hence, instead of following this interpretation of the Hegelian personhood theory of property, and without taking any view respecting which is the correct interpretation of Hegel, Unjust Enrichment follows other neo-Hegelian accounts of property, that insist that the intensity of our connection of reflection-and-attachment with resources we possess varies according to the particular resource. See MARGARET JANE RADIN, Property and Personhood, in REINTERPRETING PROPERTY 35 (1993); JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 343-89 (1988). In any event, my point here is not that the property theory 1 endorse is superior to Weinrib's. Rather, all that is required for my current purposes is the much more modest contention that Weinrib's account of property is but one possible (although, I must add, in my view not very plausible) understanding of the concept of property. Since the choice among rival conceptions of property is normative and distributive, the possibility of a non- distributive conception of property (which Weinrib et al. celebrate) does not undermine the impossibility of a nondistributive private law. Cf. Roscoe Pound, A Survey of Social Interests, 57 HARV. L. REV. 1, 6-9 (1943) (discussing individualism as one possible option of public policy).
53. In fairness to Weinrib, his account of property, which is based on his interpretation of Hegel's theory, perceives property as the embodiment of the agent's freedom of the will. Hence, the limits of one person's embodiment are the limits of another person's freedom. See Ernest J. Weinrib, Right and Advantage in Private Law, 10 CARDOZO L. REV. 1283, 1286-87, 1289-94, 1303 (1989); see also Peter Benson, Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory, 10 CARDOZO L. REV. 1077, 1163-77 (1989). The notion of a containment relation between resources and selves, from which emerges the metaphor of an absolute and uniform presence of the self in each and every resource one holds, is rather obscure. Hence, instead of following this interpretation of the Hegelian personhood theory of property, and without taking any view respecting which is the correct interpretation of Hegel, Unjust Enrichment follows other neo-Hegelian accounts of property, that insist that the intensity of our connection of reflection-and-attachment with resources we possess varies according to the particular resource. See MARGARET JANE RADIN, Property and Personhood, in REINTERPRETING PROPERTY 35 (1993); JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 343-89 (1988). In any event, my point here is not that the property theory 1 endorse is superior to Weinrib's. Rather, all that is required for my current purposes is the much more modest contention that Weinrib's account of property is but one possible (although, I must add, in my view not very plausible) understanding of the concept of property. Since the choice among rival conceptions of property is normative and distributive, the possibility of a non-distributive conception of property (which Weinrib et al. celebrate) does not undermine the impossibility of a nondistributive private law. Cf. Roscoe Pound, A Survey of Social Interests, 57 HARV. L. REV. 1, 6-9 (1943) (discussing individualism as one possible option of public policy).
54. In fairness to Weinrib, his account of property, which is based on his interpretation of Hegel's theory, perceives property as the embodiment of the agent's freedom of the will. Hence, the limits of one person's embodiment are the limits of another person's freedom. See Ernest J. Weinrib, Right and Advantage in Private Law, 10 CARDOZO L. REV. 1283, 1286-87, 1289-94, 1303 (1989); see also Peter Benson, Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory, 10 CARDOZO L. REV. 1077, 1163-77 (1989). The notion of a containment relation between resources and selves, from which emerges the metaphor of an absolute and uniform presence of the self in each and every resource one holds, is rather obscure. Hence, instead of following this interpretation of the Hegelian personhood theory of property, and without taking any view respecting which is the correct interpretation of Hegel, Unjust Enrichment follows other neo-Hegelian accounts of property, that insist that the intensity of our connection of reflection-and-attachment with resources we possess varies according to the particular resource. See MARGARET JANE RADIN, Property and Personhood, in REINTERPRETING PROPERTY 35 (1993); JEREMY WALDRON, THE RIGHT TO PRIVATE PROPERTY 343-89 (1988). In any event, my point here is not that the property theory 1 endorse is superior to Weinrib's. Rather, all that is required for my current purposes is the much more modest contention that Weinrib's account of property is but one possible (although, I must add, in my view not very plausible) understanding of the concept of property. Since the choice among rival conceptions of property is normative and distributive, the possibility of a non- distributive conception of property (which Weinrib et al. celebrate) does not undermine the impossibility of a nondistributive private law. Cf. Roscoe Pound, A Survey of Social Interests, 57 HARV. L. REV. 1, 6-9 (1943) (discussing individualism as one possible option of public policy).
55. See Joseph W. Singer, Legal Realism Now, 76 CAL. L. REV. 467, 491 (1988): Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980); see also Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L.J. 601, 631 (1998) (noting that "[t]he very notion of property as exclusive dominion is at most a cartoon or trope, as Blackstone himself must have known - a trope to make complex systems of rights intelligible by the Cartesian practice of division and separate analysis").
56. See Joseph W. Singer, Legal Realism Now, 76 CAL. L. REV. 467, 491 (1988): Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980); see also Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L.J. 601, 631 (1998) (noting that "[t]he very notion of property as exclusive dominion is at most a cartoon or trope, as Blackstone himself must have known - a trope to make complex systems of rights intelligible by the Cartesian practice of division and separate analysis").
57. See Joseph W. Singer, Legal Realism Now, 76 CAL. L. REV. 467, 491 (1988): Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The Development of the Modern Concept of Property, 29 BUFF. L. REV. 325 (1980); see also Carol M. Rose, Canons of Property Talk, or, Blackstone's Anxiety, 108 YALE L.J. 601, 631 (1998) (noting that "[t]he very notion of property as exclusive dominion is at most a cartoon or trope, as Blackstone himself must have known - a trope to make complex systems of rights intelligible by the Cartesian practice of division and separate analysis").
58. See JEREMY BENTHAM, THE THEORY OF LEGISLATION 111-13 (R. Hildreth trans., C.K. Ogden ed., 1931); Frederick G. Whelan, Property as Artifice: Hume and Blackstone, in PROPERTY: NOMOS XXII 101 (J. Roland Pennock & John W. Chapman eds., 1980).
59. See JEREMY BENTHAM, THE THEORY OF LEGISLATION 111-13 (R. Hildreth trans., C.K. Ogden ed., 1931); Frederick G. Whelan, Property as Artifice: Hume and Blackstone, in PROPERTY: NOMOS XXII 101 (J. Roland Pennock & John W. Chapman eds., 1980).
60. See W.B. Gallie, Essentially Contested Concepts, 56 PROC. OF THE ARISTOTELIAN SOC'Y (New Series) 167, 169 (1956) (describing essentially contested concepts as "concepts the proper use of which inevitably involves endless disputes about their proper uses on the part of their users").
61. See Roberto Mangaberia Unger, The Critical Legal Studies Movement, 96 HARV. L. REV. 561, 578 (1983).
62. SEE BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 9-15, 26-29, 97-100 (1977); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Emily Sherwin, Two- and Three- Dimensional Property Rights, 29 ARIZ. ST. L.J. 1075, 1076 (1997). Weinrib dismisses the argument that the idea of property is too indeterminate to be useful, finding it rather defeatist.
63. SEE BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 9-15, 26- 29, 97-100 (1977); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Emily Sherwin, Two- and Three- Dimensional Property Rights, 29 ARIZ. ST. L.J. 1075, 1076 (1997). Weinrib dismisses the argument that the idea of property is too indeterminate to be useful, finding it rather defeatist.
64. SEE BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 9-15, 26- 29, 97-100 (1977); Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710, 746-47 (1917); Emily Sherwin, Two- and Three-Dimensional Property Rights, 29 ARIZ. ST. L.J. 1075, 1076 (1997). Weinrib dismisses the argument that the idea of property is too indeterminate to be useful, finding it rather defeatist.
65. See Weinrib, Restitutionarv Damages, supra note 5 (manuscript at 43 n.48, on file with author). The indeterminacy of property, however, is not a complexity that will make his theory difficult to administer on the margins. Rather, an essentially contested concept like property cannot firmly justify his theory, even at the core.
66. See Hohfeld, supra note 47, at 720, 733-34; Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964); Joseph W. Singer, The Reliance Interest in Property, 40 STAN. L. REV. 614 (1988).
67. See Hohfeld, supra note 47, at 720, 733-34; Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964); Joseph W. Singer, The Reliance Interest in Property, 40 STAN. L. REV. 614 (1988).
68. See Hohfeld, supra note 47, at 720, 733-34; Charles A. Reich, The New Property, 73 YALE L.J. 733 (1964); Joseph W. Singer, The Reliance Interest in Property, 40 STAN. L. REV. 614 (1988).
69. See JOHN CHRISTMAN, THE MYTH OF PROPERTY: TOWARD AN EGALITARIAN THEORY OF OWNERSHIP (1994); BARBARA FRIED, THE PROGRESSIVE ASSAULT ON LAISSEZ FAIRE: ROBERT HALE AND THE FIRST LAW AND ECONOMICS MOVEMENT ch. 4 (1998).
70. See JOHN CHRISTMAN, THE MYTH OF PROPERTY: TOWARD AN EGALITARIAN THEORY OF OWNERSHIP (1994); BARBARA FRIED, THE PROGRESSIVE ASSAULT ON LAISSEZ FAIRE: ROBERT HALE AND THE FIRST LAW AND ECONOMICS MOVEMENT ch. 4 (1998).
71. Weinrib concedes that certain nonproprietary rights are "property-like" enough to allow for restitution of gains. See Weinrib, Restitutionary Damages, supra note 5 (manuscript at 43, on file with author).
72. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 12-22.
73. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975.
74. See Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913); Joseph William Singer, The Legal Rights Debate in Analytical Jurisprudence from Bentham to Hohfeld, 1982 WIS. L. REV. 975.
75. See Robert L. Rabin, Law For Law's Sake, 105 YALE L.J. 2261, 2270 (1996) (reviewing ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995)) ("A system of private law does not fall from the sky . . . . [I]t cannot but reflect an independent choice of external purpose."); Kenneth W. Simons, Justification in Private Law, 81 CORNELL L. REV. 698, 737 (1996) (reviewing ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995)) (arguing that the use of normative factors in adjudicating private law is not necessarily consequentialist).
76. See Robert L. Rabin, Law For Law's Sake, 105 YALE L.J. 2261, 2270 (1996) (reviewing ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995)) ("A system of private law does not fall from the sky . . . . [I]t cannot but reflect an independent choice of external purpose."); Kenneth W. Simons, Justification in Private Law, 81 CORNELL L. REV. 698, 737 (1996) (reviewing ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995)) (arguing that the use of normative factors in adjudicating private law is not necessarily consequentialist).
77. See supra text accompanying note 51.
78. See supra text accompanying notes 41-50.
79. In The Idea of Private Law, Weinrib concedes that corrective justice presupposes the existence of entitlements but insists that the entitlements are not the creation of distributive justice. He argues that, if private law simply remedied violations of a distributive scheme, (1) the categories of corrective and distributive justice would be collapsed, (2) there would be no explanation for private law's failure to address many disturbances to our distributive scheme, such as gifts or natural disasters, and (3) the distribution could be remedied without a direct transfer between plaintiff and defendant, which is essential to private law. See WEINRIB, supra note 2, at 78-80. I have no quarrel with the claim that private law adjudication does not deal with redistribution in the pursuit of distributive justice. Instead, my claim is that the entitlements which private law vindicates constitute a society-wide principled distribution of burdens and benefits. See supra note 9 and accompanying text.
80. See generally OLIVER WENDELL HOLMES, Law in Science and Science in Law, in COLLECTED LEGAL PAPERS 210, 230, 232, 238-39 (1920); Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 812, 820 (1935); Steven Hedley, 'Unjust Enrichment', 54 CAMBRIDGE L.J. 578, 580, 593 (1995).
81. See generally OLIVER WENDELL HOLMES, Law in Science and Science in Law, in COLLECTED LEGAL PAPERS 210, 230, 232, 238-39 (1920); Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 812, 820 (1935); Steven Hedley, 'Unjust Enrichment', 54 CAMBRIDGE L.J. 578, 580, 593 (1995).
82. See generally OLIVER WENDELL HOLMES, Law in Science and Science in Law, in COLLECTED LEGAL PAPERS 210, 230, 232, 238-39 (1920); Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 812, 820 (1935); Steven Hedley, 'Unjust Enrichment', 54 CAMBRIDGE L.J. 578, 580, 593 (1995).
83. See Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 413, 418-21 (David Kairys ed., rev. ed. 1990); Hedley, supra note 57, at 592; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209, 211-21 (1979). In reviewing Professor Weinrib's book, The Idea of Private Law, one commentator warned readers that "it is important to see just how potent [Weinrib's assumptions about entitlements] can be." He went on to say that Weinrib's assumptions might explain his conclusions better than the correlativity theory itself. See Simons, supra note 53, at 717.
84. See Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 413, 418-21 (David Kairys ed., rev. ed. 1990); Hedley, supra note 57, at 592; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209, 211-21 (1979). In reviewing Professor Weinrib's book, The Idea of Private Law, one commentator warned readers that "it is important to see just how potent [Weinrib's assumptions about entitlements] can be." He went on to say that Weinrib's assumptions might explain his conclusions better than the correlativity theory itself. See Simons, supra note 53, at 717.
85. See Robert W. Gordon, New Developments in Legal Theory, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE 413, 418-21 (David Kairys ed., rev. ed. 1990); Hedley, supra note 57, at 592; Duncan Kennedy, The Structure of Blackstone's Commentaries, 28 BUFF. L. REV. 209, 211-21 (1979). In reviewing Professor Weinrib's book, The Idea of Private Law, one commentator warned readers that "it is important to see just how potent [Weinrib's assumptions about entitlements] can be." He went on to say that Weinrib's assumptions might explain his conclusions better than the correlativity theory itself. See Simons, supra note 53, at 717.
86. On the power dimension of adjudication, see ROBERT COVER, Violence and the Word, in NARRATIVE, VIOLENCE, AND THE LAW 203 (Martha Minow et al. eds., 1992).
87. On the dialectical relation between law's coercion and its nature as a justificatory practice, see DWORKIN, supra note 36, at 261-62; K. N. Llewellyn, The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method, 49 YALE L.J. 1355, 1381-86 (1940). For other views as to the relationship between law's coercion and its normativity - reductive, additive, and disjunctive - see generally Meir Dan Cohen, In Defense of Defiance, 23 PHIL. & PUB. AFF. 24 (1994).
88. On the dialectical relation between law's coercion and its nature as a justificatory practice, see DWORKIN, supra note 36, at 261-62; K. N. Llewellyn, The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method, 49 YALE L.J. 1355, 1381-86 (1940). For other views as to the relationship between law's coercion and its normativity - reductive, additive, and disjunctive - see generally Meir Dan Cohen, In Defense of Defiance, 23 PHIL. & PUB. AFF. 24 (1994).
89. On the dialectical relation between law's coercion and its nature as a justificatory practice, see DWORKIN, supra note 36, at 261-62; K. N. Llewellyn, The Normative, the Legal, and the Law-Jobs: The Problem of Juristic Method, 49 YALE L.J. 1355, 1381-86 (1940). For other views as to the relationship between law's coercion and its normativity - reductive, additive, and disjunctive - see generally Meir Dan Cohen, In Defense of Defiance, 23 PHIL. & PUB. AFF. 24 (1994).
90. Edward L. Rubin, Punitive Damages: Reconceptualizing the Runcible Remedies of Common Law, 1998 WIS. L. REV. 131, 154.
91. The law and economics movement also tends to blur this distinction. See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 401 (5th ed. 1998) (identifying two methods of public control: "the common law system of privately enforced rights and the administrative system of direct public control").
92. The qualified language of the text is deliberate. It is meant to leave space for cases in which the confiscatory portion of the damages reflects the defendant's contempt for the plaintiffs value relative to the defendant's and thus reasserts "the truth about the relative value of wrongdoer and victim by inflicting a publicly visible defeat on the wrongdoer." Marc Galanter & David Luban, Poetic Justice: Punitive Damages and Legal Pluralism, 42 AM. U. L. REV. 1393, 1432 (1993). A comprehensive discussion of the controversial issue of punitive damages is beyond the scope of this Article. See Hanoch Dagan & James J. White, Citizens, Governments, and Injurious Industries, 74 N.Y.U. L. REV. (forthcoming 2000) (manuscript at Part III.C, on file with author).
93. The qualified language of the text is deliberate. It is meant to leave space for cases in which the confiscatory portion of the damages reflects the defendant's contempt for the plaintiffs value relative to the defendant's and thus reasserts "the truth about the relative value of wrongdoer and victim by inflicting a publicly visible defeat on the wrongdoer." Marc Galanter & David Luban, Poetic Justice: Punitive Damages and Legal Pluralism, 42 AM. U. L. REV. 1393, 1432 (1993). A comprehensive discussion of the controversial issue of punitive damages is beyond the scope of this Article. See Hanoch Dagan & James J. White, Citizens, Governments, and Injurious Industries, 74 N.Y.U. L. REV. (forthcoming 2000) (manuscript at Part III.C, on file with author).
94. Weinrib reminds his reader that the defendant's duty cannot be the "analytic reflex" of the plaintiff's right or vice versa. That would "tip the equilibrium in favor of one of the parties." WEINRIB, supra note 2, at 124.
95. Weinrib theorizes that proceeds recovery can be consistent with correlativity, because denying a willful defendant credit for her expenses simply denies her the right to claim a protected interest in her own property, the right she herself denied the plaintiff. Weinrib finds the disgorgement of the entire proceeds correlated to the infringement of the plaintiff's rights. See Weinrib, Restitutionary Damages, supra note 5 (manuscript at 33-41, on file with author). He does not, however, successfully distinguish the extra liability from criminal punishment, and he bases his theory on an inaccurate description of his example cases. Cf. DAGAN, UNJUST ENRICHMENT, supra note 4, at 73-75.
96. Cf. Peter Cane, Corrective Justice and Correlativity in Private Law, 16 OXFORD J.L. STUDIES 471, 481-82 (1996) (reviewing ERNEST J. WEINRIB, THE IDEA OF PRIVATE LAW (1995)) (arguing that the underpinnings of private law are public and distributive because they allocate entitlements, and concluding that some principles of distributive justice are consistent with Weinrib's theory of correlativity in private law).
97. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 14-16. The idea that different types of remedies correspond to (or constitute) different types of rights was already enunciated in KARL N. LLEWELLYN, A Realistic Jurisprudence: The Next Step, in JURISPRUDENCE: REALISM IN THEORY AND IN PRACTICE 3, 22 (1962). For a contemporary reaffirmation of this claim, see Jeffrey J. Rachlinski & Forest Jourden, Remedies and the Psychology of Ownership, 51 VAND. L. REV. 1541, 1542 (1998) (presenting evidence that injunctive remedies for violations of property rights create a stronger sense of ownership than do damages remedies).
98. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 14-16. The idea that different types of remedies correspond to (or constitute) different types of rights was already enunciated in KARL N. LLEWELLYN, A Realistic Jurisprudence: The Next Step, in JURISPRUDENCE: REALISM IN THEORY AND IN PRACTICE 3, 22 (1962). For a contemporary reaffirmation of this claim, see Jeffrey J. Rachlinski & Forest Jourden, Remedies and the Psychology of Ownership, 51 VAND. L. REV. 1541, 1542 (1998) (presenting evidence that injunctive remedies for violations of property rights create a stronger sense of ownership than do damages remedies).
99. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 14-16. The idea that different types of remedies correspond to (or constitute) different types of rights was already enunciated in KARL N. LLEWELLYN, A Realistic Jurisprudence: The Next Step, in JURISPRUDENCE: REALISM IN THEORY AND IN PRACTICE 3, 22 (1962). For a contemporary reaffirmation of this claim, see Jeffrey J. Rachlinski & Forest Jourden, Remedies and the Psychology of Ownership, 51 VAND. L. REV. 1541, 1542 (1998) (presenting evidence that injunctive remedies for violations of property rights create a stronger sense of ownership than do damages remedies).
100. This is the case only if the defendant was conscious of the infringement. Otherwise, the plaintiffs control has not been infringed. An innocent infringer, in other words, does not signify a denial of the owner's right to control the resource at issue. Cf. Weinrib, Restitutionary Damages, supra note 5 (manuscript at 36, on file with author).
101. Insofar as the fear to which the text refers is that social values should not define the parties' ex ante entitlement, it is - as I argued above - inevitably true, and thus unimportant.
102. In other words as my discussion of condemnation in the text above seeks to emphasize, I do not dispute the importance of the internal-external distinction insofar as it springs from the injunction of correlativity. I maintain, however, that the constraints it imposes -which unlike typical authors of the social values school I find to be real - are much less severe than Weinrib believes them to be. As long as - but only insofar as - the public purpose (or social value) is capable of informing the ex ante distribution of people's entitlements, it cannot be deemed "external" to the parties' relationships. This section maintains that while it is problematic to endow individuals with the entitlement to society's condemnation, it is perfectly sensible to endow them with entitlements to either the well-being embedded in their resource or the control over it (or both). A proper demarcation of the internalexternal divide must distinguish punishment from deterrence and reconceptualize deterrence as vindication of control.
103. See Stephen A. Smith, The Idea of Private Law, 112 LAW Q. REV. 363, 365 (1996) (reviewing E.J. WEINRIB, THE IDEA OF PRIVATE LAW (1995)) ("How can one justify the law without introducing morality? What else is justification about?").
104. See Stephen A. Smith, The Idea of Private Law, 112 LAW Q. REV. 363, 365 (1996) (reviewing E.J. WEINRIB, THE IDEA OF PRIVATE LAW (1995)) ("How can one justify the law without introducing morality? What else is justification about?").
105. See Hanoch Dagan, Takings and Distributive Justice, 85 VA. L. REV. 741, 791 n.177 (1999) (discussing the unique expressive role of legal doctrines that define fundamental concepts and institutions of popular use, such as ownership).
106. See supra text accompanying notes 40-48.
107. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 73-78. In Unjust Enrichment, I suggested that this exceptional measure of recovery for nuisance is one important example with regard to which an economic explanation seems the most convincing. See id. at 78-89 & n.28.
108. See id. at 87-89.
109. 377 U.S. 476 (1964).
110. See Aro, 377 U.S. at 476.
111. Act of August 1, 1946, ch. 726, § 1, 60 Stat. 778 (codified at 35 U.S.C. § 70 (1946)).
112. See Aro, 377 U.S. at 509-10.
113. See supra text accompanying note 74.
114. For an extended discussion see DAGAN, UNJUST ENRICHMENT, supra note 4, at 87-89.
115. See id. at 66-68.
116. In the Court's language, this is "the important distinction between 'damages' and 'profits' " insofar as the rules respecting joint infringement are concerned. Aro, 377 U.S. at 505.
117. See Aro, 377 U.S. at 512.
118. 444 U.S. 507 (1980).
119. See Snepp, 444 U.S. at 515-16.
120. Snepp, 444 U.S. at 510. The breach of contract by itself does not trigger restitutionary damages. See Hanoch Dagan. Restitutionary Damages for Breach of Contract: An Exercise in Private Law Theory, in 1 THEORETICAL INQUIRIES IN LAW (forthcoming 1999)[hereinafter Dagan, Restitutionary Damages for Breach of Contract].
121. Snepp, 444 U.S. at 515.
122. See Snepp, 444 U.S. at 521, 523.
123. See Snepp, 444 U.S. at 518-19.
124. Snepp, 444 U.S. at 526.
125. See Snepp, 444 U.S. at 526.
126. Weinrib, Restitutionary Damages, supra note 5 (manuscript at 44, on file with author).
127. Id. 94. See Robert Cooter & Bradley J. Freedman, The Fiduciary Relationship: Us Economic Character and Legal Consequences, 66 N.Y.U. L. REV. 1045 (1991).
128. 95. See id. at 1046-47.
129. See id. at 1051.
130. See id. at 1052 (the reduced probability of enforcement reduces the deterrent effect of a profits remedy, because the probable gain from breach is always greater than the probable liability).
131. Id. at 1053-54.
132. See id. at 1054.
133. See R.C. Nolan, Conflicts of Interest, Unjust Enrichment and Wrongdoing, in RESTITUTION: PAST, PRESENT AND FUTURE 87, 105 (W.R. Cornish et al. eds., 1998) ("[T]He fundamental fiduciary principle of loyalty may form the basis for recognising new actions to redress new forms of wrongdoing, actions which promote loyalty by stigmatising disloyalty and conduct which may lead to disloyalty.").
134. I discuss elsewhere, in some detail, the broader claim that "unjust enrichment" is but a conclusion merely in need of supportive normative arguments. See Dagan, Restitutionary Damages for Breach of Contract, supra note 86 (manuscript at Part II, on file with author).
135. For an economic analysis of this question see Cooter & Freedman, supra note 94, at 1064-74.
136. A court making this normative decision might also consider the unusual situation in Snepp, where the beneficiary is more powerful relative to the fiduciary than in most such relationships. Perhaps such a powerful beneficiary does not need control over its fiduciaries' ancillary duties, because it is better positioned than other beneficiaries to detect and to prove breach.
137. 793 P.2d 479 (1990).
138. See Moore, 793 P.2d at 483-85.
139. See Moore, 793 P.2d at 488-96.
140. Another important consideration for the majority was the concern of "hindering the socially useful activities of innocent researchers," that - had Moore's claim been accepted - would have been subject to liability whether or not they participated in, or knew of, the infringement of the patient's right. See Moore, 793 P.2d at 497. In his dissent Justice Broussard accepted the need to protect such third parties, but insisted that it did not justify the absolution of the appropriator. See Moore, 793 P.2d at 504 (Broussard, J., concurring and dissenting). This reply is correct notwithstanding the majority's assertion that a separate defense for third parties would be impossible. See Moore, 793 P.2d at 494. The restitutionary defense of bona fide purchase supplies exactly such a defense. See RESTATEMENT OF RESTITUTION §§ 13, 123, 172 (1937); Menachem Mautner, "The Eternal Triangles of the Law": Toward a Theory of Priorities in Conflicts Involving Remote Parties, 90 MICH. L. REV. 95 (1991). Similarly, the question raised by the majority, whether a victim of misappropriation can sue for the product of the appropriated asset, rather than the asset itself, is moot. See Moore, 793 P.2d at 489, 492. The law of unjust enrichment again supplies a convenient, although admittedly troubled, tool - the tracing doctrine - for overcoming such difficulties. See DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES: CASES AND MATERIALS 594-627 (2d ed. 1994); Craig Rotherham, The Metaphysics of Tracing: Substituted Title and Property Rhetoric, 34 OSGOODE HALL L.J. 322 (1996); Emily L. Sherwin, Constructive Trusts in Bankruptcy, 1989 U. ILL. L. REV. 297.
141. Another important consideration for the majority was the concern of "hindering the socially useful activities of innocent researchers," that - had Moore's claim been accepted - would have been subject to liability whether or not they participated in, or knew of, the infringement of the patient's right. See Moore, 793 P.2d at 497. In his dissent Justice Broussard accepted the need to protect such third parties, but insisted that it did not justify the absolution of the appropriator. See Moore, 793 P.2d at 504 (Broussard, J., concurring and dissenting). This reply is correct notwithstanding the majority's assertion that a separate defense for third parties would be impossible. See Moore, 793 P.2d at 494. The restitutionary defense of bona fide purchase supplies exactly such a defense. See RESTATEMENT OF RESTITUTION §§ 13, 123, 172 (1937); Menachem Mautner, "The Eternal Triangles of the Law": Toward a Theory of Priorities in Conflicts Involving Remote Parties, 90 MICH. L. REV. 95 (1991). Similarly, the question raised by the majority, whether a victim of misappropriation can sue for the product of the appropriated asset, rather than the asset itself, is moot. See Moore, 793 P.2d at 489, 492. The law of unjust enrichment again supplies a convenient, although admittedly troubled, tool - the tracing doctrine - for overcoming such difficulties. See DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES: CASES AND MATERIALS 594-627 (2d ed. 1994); Craig Rotherham, The Metaphysics of Tracing: Substituted Title and Property Rhetoric, 34 OSGOODE HALL L.J. 322 (1996); Emily L. Sherwin, Constructive Trusts in Bankruptcy, 1989 U. ILL. L. REV. 297.
142. Another important consideration for the majority was the concern of "hindering the socially useful activities of innocent researchers," that - had Moore's claim been accepted - would have been subject to liability whether or not they participated in, or knew of, the infringement of the patient's right. See Moore, 793 P.2d at 497. In his dissent Justice Broussard accepted the need to protect such third parties, but insisted that it did not justify the absolution of the appropriator. See Moore, 793 P.2d at 504 (Broussard, J., concurring and dissenting). This reply is correct notwithstanding the majority's assertion that a separate defense for third parties would be impossible. See Moore, 793 P.2d at 494. The restitutionary defense of bona fide purchase supplies exactly such a defense. See RESTATEMENT OF RESTITUTION §§ 13, 123, 172 (1937); Menachem Mautner, "The Eternal Triangles of the Law": Toward a Theory of Priorities in Conflicts Involving Remote Parties, 90 MICH. L. REV. 95 (1991). Similarly, the question raised by the majority, whether a victim of misappropriation can sue for the product of the appropriated asset, rather than the asset itself, is moot. See Moore, 793 P.2d at 489, 492. The law of unjust enrichment again supplies a convenient, although admittedly troubled, tool - the tracing doctrine - for overcoming such difficulties. See DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES: CASES AND MATERIALS 594-627 (2d ed. 1994); Craig Rotherham, The Metaphysics of Tracing: Substituted Title and Property Rhetoric, 34 OSGOODE HALL L.J. 322 (1996); Emily L. Sherwin, Constructive Trusts in Bankruptcy, 1989 U. ILL. L. REV. 297.
143. Another important consideration for the majority was the concern of "hindering the socially useful activities of innocent researchers," that - had Moore's claim been accepted - would have been subject to liability whether or not they participated in, or knew of, the infringement of the patient's right. See Moore, 793 P.2d at 497. In his dissent Justice Broussard accepted the need to protect such third parties, but insisted that it did not justify the absolution of the appropriator. See Moore, 793 P.2d at 504 (Broussard, J., concurring and dissenting). This reply is correct notwithstanding the majority's assertion that a separate defense for third parties would be impossible. See Moore, 793 P.2d at 494. The restitutionary defense of bona fide purchase supplies exactly such a defense. See RESTATEMENT OF RESTITUTION §§ 13, 123, 172 (1937); Menachem Mautner, "The Eternal Triangles of the Law": Toward a Theory of Priorities in Conflicts Involving Remote Parties, 90 MICH. L. REV. 95 (1991). Similarly, the question raised by the majority, whether a victim of misappropriation can sue for the product of the appropriated asset, rather than the asset itself, is moot. See Moore, 793 P.2d at 489, 492. The law of unjust enrichment again supplies a convenient, although admittedly troubled, tool - the tracing doctrine - for overcoming such difficulties. See DOUGLAS LAYCOCK, MODERN AMERICAN REMEDIES: CASES AND MATERIALS 594-627 (2d ed. 1994); Craig Rotherham, The Metaphysics of Tracing: Substituted Title and Property Rhetoric, 34 OSGOODE HALL L.J. 322 (1996); Emily L. Sherwin, Constructive Trusts in Bankruptcy, 1989 U. ILL. L. REV. 297.
144. See Moore, 793 P.2d at 519-21 (Mosk, J., dissenting).
145. Moore, 793 P.2d at 502 (Arabian, J., concurring).
146. Weinrib, Restitutionary Damages, supra note 4 (manuscript at 5, on file with author). Notice that even the dissents do not take the commitment to the patient's control to its logical conclusion. Thus, Justice Mosk develops "an analogy to the concept of 'joint inventor' " which would prevent the researcher's unjust enrichment by giving a monetary reward to the donor proportionate to the value of his or her relative contribution. See Moore, 793 P.2d at 512-13, 517 (Mosk, J., dissenting); Moore, 793 P.2d at 505 (Arabian, J., concurring). Insofar as the enrichment is said to be unjust due to the violation of the patient's right to control, as the normative premise mentioned in the text implies, this solution - of awarding the intermediate measure I call proportional profits - is again inadequate. Proportional profits cannot secure the plaintiff's control, but merely hypothetical consent, which may be good enough for resources like copyright, but is not rigid enough even where infringements of entitlements in land are at hand. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 19-21, 82-85, 73-78. Hence, Justice Mosk's analysis requires an even more rigid result than he acknowledges.
147. Moore, 793 P.2d at 515 (Mosk, J. dissenting).
148. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 64; see also Stephen R. Munzer, Human Dignity and Property Rights in Human Body Parts, in PROPERTY PROBLEMS FROM GENES TO PENSION FUNDS 21, 28 (1997) ("'[T]he body is part of the self; in its togetherness with the self it constitutes the person.'" (quoting Kant)).
149. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 64; see also Stephen R. Munzer, Human Dignity and Property Rights in Human Body Parts, in PROPERTY PROBLEMS FROM GENES TO PENSION FUNDS 21, 28 (1997) ("'[T]he body is part of the self; in its togetherness with the self it constitutes the person.'" (quoting Kant)).
150. See Moore, 793 P.2d at 497-98 (Arabian, J., concurring).
151. See Moore, 793 P.2d at 490.
152. See supra note 110.
153. The suggestion that awarding profits in cases of misappropriation of body parts may hurt innocent third parties and is therefore inappropriate is, as may be recalled, moot. See supra note 107.
154. See Moore, 793 P.2d at 493-94.
155. See MARGARET JANE RADIN, CONTESTED COMMODITIES 21, 125-26 (1996).
156. Cf. Moore, 793 P.2d at 506 (Arabian, J., concurring) (claiming that the majority's decision does not elevate the human tissues above the marketplace, but merely shifts the right to their commercial exploitation to tortfeasors).
157. See DAGAN, UNJUST ENRICHMENT, supra note 4, at 41-43 (discussing the normative value of reflection and attachment).
158. The proposition also explains the fact that the dissent did not draw the required logical conclusion from its position. See supra note 110.