Date: Thu, 2 Nov 2006 16:44:11 -0600

From: Richard Wright

Subject: Ken's response to Jason

Very few interactive* justice theorists believe that it applies only to property rights, or only to unjust losses and not also to unjust gains.

*I use "interactive" rather than "corrective" since the former more transparently identifies the subject matter of this type of justice and the latter commonly misleads people (including some who claim to be corrective justice theorists) into thinking (1) that "corrective" justice is merely concerned with correcting wrongs otherwise identified or defined rather than with also preventing wrongs beforehand (e.g., through injunctions) that are identified by the principle of interactive justice itself and/or (2) that "corrective" justice is merely a corollary of distributive justice, concerned solely with correcting deviations from distributively just sets of holdings, rather than an independent principle of justice (with both principles being grounded on the foundational premise of equal freedom).

Richard Wright

-----Original Message-----
From: John Murphy
Sent: Thursday, November 02, 2006 7:55 AM
Subject: ODG: Ken's response to Jason

Jason,

I'm with Ken on this business of theft of the plaintiff's identity. But I'd add this.

1. The intention (absolutely crucial in theft law) is, as Ken says, to blacken the plaintiff's name. The editor's motive, by contrast, is to make money out of doing so.

2. In traditional theft law, the intention must be to DEPRIVE PERMANENTLY the victim of something. I dare say a tabloid editor couldn't care a hoot (were it not for the damages he may be required to pay in a defamation action) if the victim's reputation is restored several months down the line.

The centrality of the intention to permanently deprive in theft law is reinforced by a highly technical exception where borrowing can be theft: Theft Act, s 6. (I'm assuming the law hasn't changed on this since I studied it 20 years ago). In that exceptional case, the "intended borrowing" was still deemed to be an intent to deprive permanently. But as I say, in the case of the editor, I think the most you could say is that he was indifferent as to whether the victim's reputation was later restored GIVEN that his sole motive was to make money out of the story.

Of course, if you believe that tort law is exclusively about corrective justice, then you will naturally want to adopt the Weinrib approach. But it is just as important that the law fits the facts as it is that the theory fits the case law.

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