Gold on the Kinds of Justice in Private Law

Andrew Gold has posted to SSRN The Many Kinds of Justice in Private Law. The abstract provides:

Private law theorists often employ a single type of justice to explain the field.  Typically, the chosen type is corrective justice.  While it is true that courts look to do “justice between the parties”, I will argue that “justice between the parties” is an open-ended category that encapsulates multiple types of justice.  Seeing private law this way also gives us insights into how private law functions as a dynamic system.  In particular, the open-ended idea of justice between the parties allows for judicial creativity in doing justice.  And that creativity, in turn, is an important mechanism for addressing cases in which corrective justice is either an infeasible or an undesirable approach to a legal dispute.  In some cases, the norms of justice in private law serve as a second best to corrective justice.  In other cases, these norms of justice serve different values and goals.  Notably, allowing for such creativity has a prudential justification, as a means to address new fact patterns and legal relationships which existing private law doctrine has not anticipated.