Rights, Remedies, and Normative Uncertainty about Justice

Abstract I develop and defend a novel account of the private law of remedies according to which it is best understood as facilitating deliberations between the parties about the just outcome of their dispute rather than correcting injustice or righting wrongs. According to my democratic conception, the parties are the ones who ideally ought to resolve moral uncertainty about justice between them by deliberating together in good faith about what justice requires. The law of remedies should therefore often refrain from offering a final judgment about what justice between the parties requires, instead setting and implementing fair default rules and principles in the shadow of which the parties will ideally articulate for themselves a joint vision of justice for their relationship.