The Limits of Reciprocity in Relational Justice
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Introduction
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,”[1] D&D proffer a unique view of private law’s orienting lodestar. They claim that “relational justice” is private law’s Polaris and, as guided by relational justice, private law can construct “edifice(s) of human relations,” by “fixing just terms of interaction.”[2]
Relational justice centers on “reciprocal respect for self-determination and substantive equality,” the “two basic commitments . . . of any liberal legal order.”[3] Self-determination encompasses an individual’s freedom “to have, to revise, and rationally to pursue a conception of the good” life.[4] Substantive equality encompasses the “egalitarian ideal” that individuals should relate to one another as equals, essentially speaking. Together, self-determination and substantive equality represent the autonomy that should found private law.
Reciprocity—in which each party to a horizontal interaction should be made to respect the autonomy interest of the other—is crucial to D&D’s conception of a relationally just private law. Thus, D&D clarify that reciprocity “applies to the terms of interactions prescribed by private law,” which should obligate each individual in a horizontal interaction to “take into consideration the impact of each party on the other in terms of self-determination and substantive equality.”[5] That is to say that although autonomy inheres in the individual, in a social setting, autonomy’s successful exercise is unavoidably dependent on how individuals interact with each other across the myriad horizontal interactions and transactions that mark our daily lives. Consequently, D&D assert that private law’s unit of concern should be the “embedded person” in a broader social setting,[6] not the abstract person, devoid of context. More specifically, private law should attend to the reality that the embedded individual’s interaction with other similarly embedded persons is “critical” to “the ability to lead one’s life, and . . . to do so successfully.”[7]
Reciprocity in relational justice contemplates a sort of hierarchy of autonomy interests in which one individual’s “sheer preference” must yield to another’s “ground project.” This is true because whereas a ground project is central to an individual’s autonomy, there is no meaningful loss of autonomy when a mere sheer preference is unrealized.[8] Similarly, when there is a grave disparity of power or broad social vulnerability between two parties to an interaction, private law rightly may structure the interaction in favor of the less powerful, more vulnerable individual because her autonomy is in peril by virtue of her relative position, as compared to that of the more powerful, less vulnerable individual.[9]
Reciprocity in relational justice, however, is not universally relevant across horizontal transactions. Indeed, sometimes, by design, it falls away completely. That is because of an important corollary of D&D’s theory of relational justice: that (at least for now) it expressly eschews reciprocity in horizontal interactions between human beings and artificial persons, like corporations or other legally created individuals and entities.[10] Specifically, although relational justice accounts for the obligations that, for example, a corporation might owe to a human individual, as currently articulated, “it provides no guidance” with respect to any reciprocal obligation that a human being might owe to a corporation.[11]
This is a problem for relational justice as a lodestar for private law writ large because most of what private law does in modern society is structure the horizontal relationships between human beings and artificial persons. For example, most people are employed by corporations or other business entities,[12] and many people rent their homes from incorporated persons or other business entities.[13] By expressly excising reciprocity in horizontal interaction between human and artificial persons, relational justice falters as a general principle for private law.
Without a theory of reciprocity that expressly considers both sides of the legally cognizable interactions that private law governs, relational justice is relegated to one of two possibilities. Either it must only claim to be partially concerned with reciprocal respect for self-determination and substantive equality, in which case, it runs the risk of exposure to the critiques that it levels against other competing theories of private law; or, if relational justice insists on reciprocal respect as a guiding principle, it is necessarily incomplete unless it expressly accounts for what a human being may owe an artificial person in a horizontal interaction. For example, would relational justice require that AT&T’s presumptive ground project of wealth maximization take priority in a horizontal interaction in which a human’s interest in not paying sales tax on an otherwise free cellphone is a mere sheer preference?[14] To meaningfully guide private law writ large, relational justice must account for the role of reciprocity in this case or else risk marginalizing itself as a private law theory of everything. Part I describes the centrality of reciprocity to D&D’s theory of relational justice. Part II argues that the express exclusion of artificial persons from D&D’s theory of relational justice interferes with its broad application to the vast incidence of private interactions between human beings and artificial persons. It uses D&D’s application of relational justice to poverty as an example in which, by relational justice’s own terms, reciprocity just disappears as a serious concern from a wide swath of private relationships governed by private law. Part III argues that this conspicuous disappearance of reciprocity leaves relational justice’s aspiration to be a guiding principle of private law vulnerable to some of the same critiques that D&D levy against competing theories. That is to say, by aiming to function as a theory of everything in private law, relational justice undermines its own significant virtues, including its insistence that private law take seriously contextualized autonomy.[15]
I. The Centrality of Reciprocity in the Theory of Relational Justice.
According to D&D, at its most essential, “[p]rivate law is the law of interpersonal relationships.”[16] That is to say, it is inherently concerned with human beings and their “horizontal relationships” with each other as autonomous creatures qua autonomous creatures.[17] Consequently, any valid theory of private law must incorporate “the two basic commitments (or organizing values) of any liberal order,” namely “self-determination” and “substantive equality.”[18] Self-determination requires private law to “proactively support [a human being’s] ability to shape a life they can view as their own,” when prescribing the terms of an interaction between two people.[19] Meanwhile, “substantive equality” encompasses “the egalitarian ideal” of individuals in a liberal society being able to relate to one another as equals in a formal sense, which, as D&D argue, requires private law to consider actual differences between human beings when prescribing the terms of their interaction, rather than treating all individuals as abstractions.[20]
Relational justice is thus founded on the “liberal maxim” of “reciprocal respect for self-determination and substantive equality,” with D&D’s intentional emphasis on reciprocity.[21] Because relational justice is concerned with the horizontal relationship between two fundamentally equal human beings, who are each engaged in the essential project of shaping their individual lives according to their own aims and who have no choice but to interact and transact in this pursuit, D&D insist on “reciprocal respect” as the animating feature of their theory. Indeed, because “our practical affairs are interdependent and replete with interactions” that influence “[t]he ability to lead one’s life . . . at almost every turn,” and “personal difference between individuals inevitably affect their relative standing in these interactions,” private law must insist on reciprocity when ordering the interaction of two individuals.[22]
Reciprocal respect for self-determination and substantive equality thus contemplates a sort of hierarchy of autonomy between two individuals engaged in a legally cognizable private interaction. Private law may rightly obligate one individual to subordinate her interest in a matter of mere “sheer preference” to accommodate the constitutive and defining “ground project” of the other individual in the interaction.[23] D&D define a sheer preference as one that an individual pursues for “superficial ends,” such that its subordination would have “hardly any bearing, if at all, on [the individual’s] broader plans, goals, and conception of self.”[24] By contrast, the “choices that pertain to [an individual’s] most fundamental decisions,” are fundamental “ground projects . . . ‘which are closely related to [an individual’s] existence and . . . give meaning to his life.’”[25] Reciprocal respect for self-determination is predicated on a hierarchy of interests in a private interaction between two individuals to the extent that private law may rightly prioritize one’s ground project over the other’s mere sheer preference.[26]
Similarly, reciprocity may require that private law account for “imbalances of power and vulnerability” between any two individuals in an interaction[27] in order for individuals to relate to each other as “substantively free and equal persons” in an essential rather than distributive sense.[28] D&D explain that:
For persons to treat each other as equals, the terms of their interaction must not reflect prominent imbalances of power or advantage between the parties. To meet this demand, the terms of private law interactions must reference the participants’ relevant personal qualities, including their distinctive characteristics and circumstances. Only if the private law’s terms of interaction are predicated on the commitment to take difference seriously, contrary to what formal equality requires, can they guarantee the ability of the parties to relate as equals.[29]
Thus, reciprocal respect for substantive equality also contemplates a hierarchy of interests in a private interaction depending on the relative positions of the two individuals involved.[30]
Indeed, it is this principal of reciprocal respect for individual’s equal right to self-determination that marks an important schism between D&D’s relational justice and the Toronto School’s orienting conception of the “dissociated person.”[31] D&D critique the Toronto School because it “builds exclusively on one underlying idea: freedom cast in terms of ‘independence from being constrained by another’s choice.’”[32] In other words, it is the unembedded, abstract person whose “formal independence” and unweighted aims and desires that private law must respect and preserve through a principal of general noninterference. From this perspective, interdependence and reciprocity relative to specific individuals are unwelcome considerations.[33] D&D strongly reject this approach, heralding reciprocity insofar as “private law must not specify the terms of interpersonal interactions in complete disregard of people’s circumstances and their constitutive choices.”[34]
II. The Limits of Reciprocity in Relational Justice
D&D limit the reach of relational justice as an animating theory of private law by explicitly claiming that reciprocal respect for self-determination and substantive justice only fully applies to a horizontal relationship between two human beings. Hence, D&D frame relational justice as “a deontological prescription regarding private law’s unit of analysis: the pertinent human and social interactions,”[35] even though they acknowledge that private law routinely purports to determine the rights and duties that constitute just terms of interaction when a human being interacts horizontally with an artificial person.[36] By contrast, where the interaction or transaction occurs between a human and an artificial person, like a corporation, relational justice relinquishes its insistence on reciprocal respect and commands only that the corporation and its agents respect the human’s right to self-determination and substantive justice. To that end, D&D predict that, “at least in some of these contexts, artificial legal persons may face more demanding obligations than their natural counterparts.”[37]
Thus, relational justice does not obligate that a human to confer reciprocal respect on an artificial person. For example, it would not require private law to look through the entity to consider how its horizontal interaction with a human might implicate the right to self-determination of its human shareholders and its other human stakeholders in the entity. It is not that D&D do not conceive of the possibility that artificial persons might implicate the autonomy interests of its human shareholders that could, in turn, impose an obligation of reciprocal respect on a human with whom it is engaged in a horizontal interaction. Rather, D&D neatly sidestep the issue, leaving its resolution to another day. They write:
In this book, we do not address cases involving corporations on both sides of the interaction nor cases involving natural persons’ duties toward corporations. Proper consideration of these questions requires a principled treatment of artificial persons. A theory of incorporated persons that transcends their economic function is urgently needed in private law theory, but this is a formidable task that must now wait. At this stage, we can settle for a rough distinction between, on the one hand, incorporations that serve as a ground project of a natural person or group of persons and, on the other, those that do not.[38]
In other words, D&D treat artificial persons as entitled to reciprocal respect for self-determination and substantive equality when the artificial person sufficiently serves as the “ground project of a natural person or group of persons.” Thus, private law may rightly prioritize the autonomy interest of a human being(s) behind the veil of a sole proprietorship or small partnership that is the life project of its owner(s). Would human shareholders in large corporation similarly fall into the category of a “group of persons” if their life savings was invested in the corporation? In this circumstance, could private law rightly recognize the wealth maximization of the corporation might serve as a ground project of those shareholders?
D&D implicitly recognize that an artificial person may have autonomy interests that private law might rightly consider. They apply relational justice to the law of restitution to explain why the private law of restitution has rightly developed to require an innocent human recipient of a mistaken payment to return the money to the human payor, even though it does not require the human recipient to return the payment when the payor is a financial institution.[39]
D&D reason that reciprocal respect for self-determination and substantive justice “supports affirmative interpersonal obligations without necessarily ignoring people’s independence.”[40] Consequently, when the law of restitution obligates the innocent human payee to return the funds to the mistaken human payor, it does so on the basis of “an affirmative legal duty of rescue” that is founded on the disproportionality between the predicament of the human payor.[41] For the latter, there is a “misalignment” between their mistaken payment and its outcome, namely the loss in value to them of the mistaken payment.[42] By contrast, with respect to the mistaken human payee, the current law of restitution imposes on the recipient a “quite modest” burden.[43] In other words, because the mistaken payor has a greater autonomy interest in recovering the mistaken payment than does the mistaken payee’s interest in not being obligated to return money, relational justice explains what the applicable law of restitution makes sense.
D&D observe, however, that when the mistaken payor is a financial institution and the mistaken recipient is a human, in practice (though not in principle), the law of restitution shifts to require the mistaken payor to bear the loss, noting that courts have made “extensive efforts in order to preclude restitutionary recovery.”[44] They explain this outcome in terms of relational justice, suggesting that reciprocal respect supports the carving out of financial institutions from the general rule of restitution in mistaken payments cases.[45]
D&D suggest that the financial institution serves the ground projects of its shareholders by providing the capacity and ability to “spread the costs of mistakes among the beneficiaries of the activity that generated the mistaken payment,” such that the ability to absorb the loss is “intrinsic to [a financial institution’s] raison d’être.”[46] Consequently, “insofar as these transferors are concerned . . . taking full responsibility for any such mistakes is fundamental to the story of their (institutional) life.”[47] That is to say that, the private law of restitution guided by relational justice’s tenet of reciprocity rightly prescribes that the financial institution payor bear the loss because it does not meaningfully interfere with the institution’s ability to serve its shareholders and other stakeholders’ fundamental goals. Moreover, the contrary rule would meaningfully “frustrat[e]” the individual recipient’s expectations to spend money that appears in their account “to adjust their modes of living—their decisions about consumption, as well as their responses to income-earning opportunities—to what they believe are their resources.”[48]
This is an exception, however, to D&D’s general application of relational justice to the horizontal interactions between a human being and an artificial person. In the dominant application, relational justice does not require private law to look through artificial persons to recognize and consider how they implicate human autonomy interests. For example, D&D explain why “relational justice requires private law to include rules that accommodate the poor.”[49] They suggest that from an autonomy standpoint, poverty is most offensive as a source of social exclusion because it “implicates a person’s inability to participate with dignity in customary social and economic interactions and includes insufficient access to such interactions or unfair terms in them.”[50] Moreover, “poverty affects the poor’s ability to interact with other people in terms of reciprocal respect for self-determination and substantive equality throughout the various (legally constructed) markets they routinely participate in . . . both inside and outside their political communities.”[51] Enter relational justice theory that “shows that poverty can count as a defect not only in the overall distribution of resources in society but also in the way private persons relate to one another in their day-to-day social and economic affairs.”[52]
Consequently, as guided by relational justice, private law should structure horizontal interactions that involve a poor human in ways that maximize her self-determination and substantive equality. It should “insist[] that employers, landlords, retailers, lenders, and others are duty-bound to address, in some measure, the poverty of their employees, tenants, buyers, and borrowers.”[53]
For instance, when considering private housing, D&D posit that relational justice “construes developers’ responsibility as horizontal and strictly transactional, requiring them to make some of their units affordable to poor home-seekers.”[54] D&D prescribe a contractual obligation that:
is grounded in the developer’s duty to respect buyers rather than the entire class of low-income family members as self-determining and substantively equal persons. What matters is not whether the developer contributes to the alleviation of poverty but whether the terms of her interaction with buyers reflect reciprocal respect for self-determination and substantive equality.[55]
It is unclear, though, what, if any, work reciprocity is doing in this circumstance. Instead, their discussion proceeds as if, as a structural matter, the real estate developer seems to have no autonomy interest that might require a different result. Unlike the financial institution where D&D allude to some cognizable human ground project that exists behind the corporate veil, here D&D assume that the real estate developer would most likely be an artificial person and do not take seriously the possibility that their prescription might undermine some human ground that exists just beyond the corporate veil. Indeed, returning to D&D’s definition of a ground project as one a project that is closely related to an individual’s very existence and that give meaning to their life, one could imagine that the pricing of rental units might be integral to a real estate developer’s existence; even one styled as an artificial person. Indeed, D&D do not even consider their own “rough distinction” under which “incorporations that serve as a ground project of a natural person or group of persons” might have autonomy interests worthy of private law’s focus.[56] Reciprocal respect seems to fall entirely by the wayside.
III. On Developing a Private Law Theory of Everything?
By abandoning the significance of reciprocity in the significant swath of private horizontal interactions between a human and an artificial person, D&D leave relational justice susceptible to some of the critiques that they levy against other theories of private law. For example, D&D object to the Toronto school’s enshrining of the “dissociated person” at the center of its conception of private law because the dissociated person is a mere figment of the imagination that is “ill-fitted to the world as we know it.”[57] D&D argue that by norming private law on a person that does not exist, the Toronto school justifies a structure that is, by design, “indifferent to the most basic features of the human experience, and therefore, ill-fitted to govern people’s interpersonal relationships.”[58] Like the Toronto School’s conception of private law on an imaginary being, however, relational justice too conceives of private law that is normed on private, horizontal interaction that increasingly is the exception rather than the rule. For example, tort law and contract law, the two classic domains of private law, often feature a human on one side and an artificial person on the other side of any given horizontal interaction. Indeed, in the modern world, to the extent that two humans do interact with each other in a manner that implicates private law, at least one human is functioning as a mere agent of an artificial person. For example, in the seminal unconscionability case, Williams v. Walker-Thomas Furniture, the door-to-door salesmen who contracted with Mrs. Williams and the other economically vulnerable buyers in her community did so on behalf of the company.[59] On this case, D&D write:
A contract “should not be enforced,” as per the famous holding in Williams v. Walker-Thomas Furniture, “when a party of little bargaining power, and hence little real choice, signs a commercially unreasonable contract with little or no knowledge of its terms.” In other words, a contract or a contract term will be invalidated, even without active interference with the weaker party’s will, when [there is] procedural and substantive unconscionability . . . This canonical formulation explains why relational justice—the requirement of reciprocal respect for self-determination and substantive equality—is unconscionability’s obvious home. To begin with, it manifests contract law’s attempt to draw a line between legitimate forms of taking advantage of one’s superior bargaining power on the one hand and exploitation, which implies using the other party’s vulnerability to secure a benefit, on the other. The exploitative interaction of another being exceeds legitimate advantage-taking because it degrades the other’s value. Since contract relies on a requirement of reciprocal respect for self-determination and substantive equality, contract law must ensure that contracts do not become a tool of exploitation.[60]
One tacit assumption in this analysis is that, by definition, in a formal sense there was no autonomy interest that private law might rightly expect Mrs. Williams to respect. In other words, reciprocity does not seem to do any work in D&D’s conclusion. If, however, reciprocal respect for self-determination and substantive equality is to provide a theoretical frame, it must explain, for example, what should have happened between Mrs. Williams and the Walker-Thomas Furniture company with reference to what they may, at least in some abstract sense, owe each other.
Finally, if only as a positive matter, any theory of private law must include some theory of collectivity through artificial personhood. Humans invest their autonomy into collective, legal structures that involve artificial persons for a variety of reasons that may encompass a ground project of the individuals. For example, a sole proprietor may incorporate her business to guard against risk of catastrophic personal loss to her family. Public teachers may pool their retirement savings into a pension fund that purchases shares in a financial institution to maximize retirement each teacher’s ability to live a good life upon his retirement. In other words, collectivity is not just relevant to theories of public law, it is also (at least practically) central to theories of private law.
To be sure, these developments engender a set of enduring and difficult questions concerning how we should think about the exercise of individual autonomy when humans choose to order their daily affairs and engage in their ground projects through collective structures like the corporation.[61] D&D admit as much, but if their theory is to become more than aspirational, it must account for the reality that human interaction with artificial persons is ubiquitous, and any grand, all-encompassing theory of private must account for this fact.
Heretically speaking, however, maybe private law does not require an all-encompassing theory of everything. Private law does so much more than just organize the horizontal relationships between two individual people. In one context, it has in its focus the relationship between two artificial persons.[62] For example, Alan Schwartz and Robert Scott have observed that, “[n]ormative theories that are grounded in a single norm--such as autonomy or efficiency--also have foundered over the heterogeneity of contractual contexts to which the theory is to apply.”[63] Thus, they have taken a “more modest approach . . . to set out and defend a normative theory to guide decisionmakers in the regulation of business contracts.”[64] In this context, Schwartz and Scott have posited that “contract law should facilitate the efforts of contracting parties to maximize the joint gains . . . from transactions” and “should do nothing else.”[65]
In a very different context, however, private law is the delegatee of public welfare in a market society where the polity believes that private ordering can better serve the public interest than can direct public intervention. For example, in the New Deal Era, the Roosevelt Administration looked to private horizontal interactions in housing as an important mechanism for broad, national economic recovery. It was in this context that the current structural norms of the most common, human-to-artificial person horizontal transactions were fostered, namely the private mortgage.[66] In this context, private law’s orienting frame is necessarily utilitarian in nature.
That is to say that if private law can have multiple orienting principles,[67] relational justice as currently conceived does important (if not universal) work in constructing “edifices of human interaction.” It is aspirational in the best sense to the extent that it offers those person-to-person horizontal interactions a path that more fully embodies essential and shared humanity.
Copyright © 2026 Abbye Atkinson, Professor of Law, UC Berkeley, School of Law. Thanks to Mark Gergen and Joy Milligan for feedback on earlier drafts. Any remaining errors are my own.
[1]. Hanoch Dagan & Avihay Dorfman, Relational Justice: A Theory of Private Law 27-29 (2024) [hereinafter “RJ”]. For example, D&D critique the “executive agent” view of private law, “who see private law as simply one possible form of public allocation and regulation,” because this view “fails to take seriously the distinction between persons” within the political collective. Id. at 30-31 (internal quotation marks omitted).
[2]. Id. at 5, 35. D&D part ways with the Toronto school, however, to the extent that the latter centers private law on the “dissociated person” whose “formal independence” should guide a private law that minimizes the encroachment of utilitarian concerns on the aims and goals of the dissociated person.
[3]. Id. at 4.
[4]. Id. at 45 (quoting John Rawls, Justice as Fairness: A Restatement 19 (2001)).
[5]. Id. at 45.
[6]. D&D explain: “the embeddedness of the person construed by private law entails implications that are by no means natural, inescapable, or deterministic. Rather, the opposite: because people are embedded in society as it is structured by private law, law can—and indeed should—take their agency seriously. At its best, private law helps to facilitate people’s autonomy and equal standing in relation to others.” Id. at 26.
[7]. Id. at 29.
[8]. Id. at 45-46.
[9]. Id.
[10]. Id. at 66.
[11]. Id.
[12]. E.g., Frequently Asked Questions, U.S. Small Bus. Ass’n, (July 2024), https://advocacy.sba.gov/wp-content/uploads/2024/12/Frequently-Asked-Questions-About-Small-Business_2024-508.pdf [https://perma.cc/8KV4-53FB].
[13]. E.g., Congressional Research Service, Ownership of the U.S. Rental Housing Stock by Investor Type: In Brief, December 13, 2022, https://www.congress.gov/crs-product/R47332 [https://perma.cc/J2D7-HQNJ] (reporting that in 2020 “LLPs, LPs, and LLCs owned 40.4% of rental units”).
[14]. See AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 337 (2011).
[15]. Accord generally, Amartya Sen, Development as Freedom (1999).
[16]. RJ at 3.
[17]. Id.; id. at 42 (“Private law is premised on people’s engagement with one another to achieve the ends they each pursue and plays a key role in constituting, facilitating, and authorizing such interdependent interactions.”).
[18]. Id. at 4.
[19]. Id.
[20]. Id.
[21]. Id. at 6 (emphasis in the original).
[22]. Id. at 5.
[23]. Id. at 4.
[24]. Id. at 48.
[25]. Id. (quoting Bernard Williams, Persons, Character and Morality, in Moral Luck 1, 12 (1981).).
[26]. Id. at 49.
[27]. Id. at 4.
[28]. Id. at 42-43 (“Relational justice is not merely a fallback plan or a lesser option than distributive justice. Rather than addressing the concern for equality in the overall scheme of any given polity, relational justice takes up the question of whether the interacting parties (e.g., in a contract) relate to one another as free and equal. As we have reiterated, its concern is the terms of the interactions between individuals.”).
[29]. Id. at 43 (emphasis in original).
[30]. Id. at 49.
[31]. Id. at 27.
[32]. Id.
[33]. Id. at 28.
[34]. Id. at 29.
[35]. Id. at 64.
[36]. Id. at 66.
[37]. Id.
[38]. Id. at 66-67.
[39]. Id. at 160-161.
[40]. Id.
[41]. Id.
[42]. Id. at 161.
[43]. Id.
[44]. Id. at 162.
[45]. Id.
[46]. Id.
[47]. Id.
[48]. Id.
[49]. Id. at 201.
[50]. Id.
[51]. Id. at 202.
[52]. Id. at 203.
[53]. Id. at 202.
[54]. Id. at 212 (emphasis in original).
[55]. Id. (emphasis added).
[56]. Id. at 66-67.
[57]. Id. at 28.
[58]. Id. at 29.
[59]. Williams v. Walker-Thomas Furniture, 350 F.2d 445 (D.C. Cir. 1965).
[60]. RJ at 137.
[61]. E.g., G.W.F. Hegel, Elements of the Philosophy of Right (1991) (theorizing the “korporation” as connecting civil society to the state); Christian List & Philip Pettit, Group Agency: The Possibility, Design, and Status of Corporate Agents 2-5 (2011) (developing a theory of “group agency” that recognizes a collective entity as “an agent in its own right” with, for example, views that may diverge from its constituent members); Meir Dan-Cohen, Rights, Persons, and Organizations: A Legal Theory for Bureaucratic Society (2016) (arguing that while “organizations can make valid claims both in the language[s] of autonomy and…utility,” “their ability to rest their claims on autonomy grounds is much more limited”).
[62]. See, e.g., Alan Schwartz & Robert E. Scott, Contract Theory and the Limits of Contract Law, 113 Yale L.J. 541 (2003).
[63]. Id. at 543.
[64]. Id. at 544.
[65]. Id.
[66]. E.g., Louis Hyman, Debtor Nation: The History of American in Red Ink 45-47 (2011) (“The real innovation of New Deal policy was … the practical harnessing of private capital for social ends” and “[a]ttempting to solve the crisis of the Great Depression, federal policymakers effectively made new markets through which home mortgages could be bought and sold”).
[67]. But see, id. at 543 (observing that “[p]luralist theories attempt to respond to the difficulty that unitary normative theories pose by urging courts to pursue efficiency, fairness, good faith, and the protection of individual autonomy” and that “[s]uch theories need, but so far lack, a meta-principle that tells which of these goals should be decisive when they conflict.”).
