The Yale Law Journal

May 2020

Competition Wrongs

Legal PhilosophyTorts

abstract. In both philosophical and legal circles, it is typically assumed that wrongs depend upon having one’s rights violated. But within any market-based economy, market participants may be wronged by the conduct of other actors in the marketplace. Due to my illicit business tactics, you may lose profits, customers, employees, reputation, access to capital, or any number of other sources of value. This Article argues that such competition wrongs are an example of wrongs that arise without an underlying right, contrary to the typical philosophical and legal assumption. The Article thus draws upon various forms of business law to illustrate what is a conceptual point: that we can and do wrong one another in ways that do not involve violating our private entitlements but rather violating only public norms.

author. Assistant Professor, University of Michigan Law School. This Article has benefitted from comments and suggestions from many others. Specifically, I would like to thank Mitch Berman, Dan Crane, Ryan Doerfler, Chris Essert, Rich Friedman, John Goldberg, Don Herzog, Waheed Hussain, Julian Jonker, Greg Keating, Greg Klass, George Letsas, Gabe Mendlow, Sanjukta Paul, Tony Reeves, Arthur Ripstein, Amy Sepinwall, Henry Smith, Sabine Tsuruda, David Waddilove, and Gary Watson. I am also grateful to audiences at Binghamton, Bowdoin, Harvard, INSEED, Michigan, Oxford, Penn, and Virginia, as well as the Bechtel Workshop in Moral and Political Philosophy, the Legal Philosophy Workshop, and the North American Workshop on Private Law Theory.