Private Law Theory

ABSTRACT
The ‘continuity thesis’ is one of Gardner’s signal contributions to tort theory. It holds that the reasons justifying one’s primary duties persist even after one breaches the duties they justify, reasserting themselves by grounding secondary duties of redress. The continuity thesis has been enormously influential but it also has attracted criticism. Perhaps the most widespread criticism – leveled in different ways by John Goldberg and Benjamin Zipursky, Stephen Smith, Victor Tadros, and Charlie Webb – alleges that the continuity thesis fails to take seriously the role that wrongdoing plays in the justification of secondary duties. This paper, a contribution to a collection devoted to the private law theory of John Gardner, assesses those criticisms and attempts to turn them back, defending the continuity thesis.

Oberdiek, John, Wrongs, Remedies, and the Persistence of Reasons: Re-Examining the Continuity Thesis (February 27, 2024), Rutgers Law School Research Paper No Forthcoming; in Private Law and Practical Reason: Essays on John Gardner’s Private Law Theory (Oxford University Press, 2023), edited by Haris Psarras and Sandy Steel.