Every day, in communities across the country, residents, consumers, workers, and the environment are subjected to unlawful conduct by public and private actors. Litigation challenging these pernicious practices has most visibly been led by private lawyers, non-profits, and state attorneys general. But local governments have also been an important part of the picture—a mighty but often untapped engine of progressive lawyering capable of redressing harms on multiple levels. The first essay in this two-part collection describes San Francisco’s current affirmative practice and the tools the City uses to hold both private companies and the federal government accountable to the people. This second essay details San Francisco’s longstanding partnership with Yale Law School—one of many capacity-enhancing strategies that has enabled the City to keep up with the demands of resource-intensive affirmative work. Together, the essays offer a potential path for other law schools and local governments seeking to establish clinics, externships, and other partnerships that can help law schools and public law offices to meet this moment and fulfill their potential as progressive plaintiffs.

Every day, in communities across the country, residents, consumers, workers, and the environment are subjected to unlawful conduct by public and private actors. Litigation challenging these pernicious practices has most visibly been led by private lawyers, non-profits, and state attorneys general. But local governments have also been an important part of the picture—a mighty but often untapped engine of progressive lawyering capable of redressing harms on multiple levels. This first essay in this two-part collection describes San Francisco’s current affirmative practice and the tools the City uses to hold both private companies and the federal government accountable to the people. The second essay details San Francisco’s longstanding partnership with Yale Law School—one of many capacity-enhancing strategies that has enabled the City to keep up with the demands of resource-intensive affirmative work. Together, the essays offer a potential path for other law schools and local governments seeking to establish clinics, externships, and other partnerships that can help law schools and public law offices to meet this moment and fulfill their potential as progressive plaintiffs.

Proponents of private law as a normatively distinct legal institution, including the influential Toronto School, assert that private law is an end in itself because it is uniquely suited to support the individual as the driver of their own destiny. In other words, private law should be understood as more than a mere instrument of public law’s broad utilitarian aim to serve the polity. Hanoch Dagan and Avihay Dorfman (“D&D”) are among these proponents. Yet, although D&D align themselves with the Toronto School to the extent that it “resist[s] the tendency of previous theorists to perceive private law as the continuation of public law by other means,” D&D proffer a unique view of private law’s orienting lodestar.

In Relational Justice Hanoch Dagan and Avihay Dorfman adopt a posture of indifference towards social morality. They take the position relational justice should neither follow nor try to improve social morality. This paper challenges the latter position and argues the relational justice project need not, and should not, be indifferent to social morality. While law should not follow social morality when it is immoral, lawmakers still have reasons to care when there is a gap between law and social morality. Trying to improve social morality to bring it into line with what law demands is one-way to address such a gap. Dagan and Dorfman renounce this solution arguing several reasons preclude law from trying to change social morality. These reasons include a commitment to liberal neutrality, an objection to rules based on motives, and an objection to ad hockery. This paper will show these reasons at most preclude using certain legal mechanisms to try to improve social morality. This paper will also explain in a general way how lawmakers should think about proposed laws that demand more of people than existing social morality, and the nature of the gap between relational justice and existing social morality.

In Relational Justice, Dagan and his co-author Avihay Dorfman argue that the aim of private law is and ought to be to structure (a subset of) our interpersonal relationships to facilitate our self-determination and substantive equality. Unlike more traditionalist interpretations, they argue that the relational justice view can make sense of the existence of important positive duties within private law. The theory of relational justice postulates duties of accommodation to attend to another’s vulnerability in our private interpersonal interactions. The relational justice view argues that these aspects of doctrine exist because the fundamental purpose of private law is to shape and support people’s ability to relate to one another as free and equal. Dagan and Dorfman claim that the basic rights that make up the domain of private law are grounded on two fundamental commitments: to self-determination and substantive equality. Self-determination is a person’s ability to make meaningful choices about the direction of their life.

‍Private law, with its focus on interpersonal rights, is often thought to have an inherently libertarian bent. This is not to say that it necessarily yields libertarian conclusions; still, if we wish to avoid these, we must introduce considerations (of distributive justice, say) that are in some important sense external to the relations among private persons central to private law. Or so it is often assumed. It is one of the distinctive virtues of Hanoch Dagan and Avihay Dorfman’s book, Relational Justice, that it puts pressure on this proto-libertarian assumption about private law, by articulating an alternative interpretation of the interpersonal normativity underpinning private law—one that is centered on the eponymous ideal of relational justice and its egalitarian commitments. It is this feature of Dagan and Dorfman’s book—their account of the egalitarian commitments that are internal to private relations, and their implications for what private law is and ought to be—that is the focus of this brief essay.