Corrective Justice and the Unlawful Means Tort: Is There A Right to Trade?
This paper investigates the extent to which the theory of corrective justice can account for the purpose, structure, and elements of the tort of unlawful interference with economic relations. It considers various proposed accounts of the tort, contending that the tort cannot be justified as an exception to the privity doctrine, a response to the defendant’s attempts to assert indirect control over the plaintiff, or a form of liability stretching. Extending a proposed account of the tort based on the theory of abuse of rights, this paper develops the idea of a “right to trade” that is founded on the conception of rights, remedies, and the systematicity of the legal order underlying corrective justice. The right to trade expresses each person’s equal opportunity to transact with others as abstract, self-determining beings in an omnilateral structure of relations—a juridical conception of the market. The paper argues that the unlawful means tort serves to protect this right, which is correlative to a duty on everyone not to interfere with the plaintiff’s equal status as a participant in the market. This conception of the tort provides a coherent account of its main features and situates it within the overall theory of corrective justice.