Monday, August 19, 2019
Gregory Keating has posted to SSRN Corrective Justice: Sovereign or Subordinate?. The abstract provides:
The concept of “corrective justice” has figured prominently in debates over the formal structure and normative commitments of private law — especially tort law — over the past generation. This chapter organizes those debates around two very different conceptions of the role and significance of corrective justice in private law, especially tort law. One conception sees corrective justice as “sovereign” the other sees it as “subordinate”. On a subordinate conception, corrective justice is an aspect of the institution of tort law and it must be accounted for by an adequate theory of tort. On a sovereign conception, corrective justice is the master concept of tort law; it does the explaining. In the disciplinary battles of the past few decades, economically inclined theorists of tort — especially Richard Posner — have conceived of corrective justice as subordinate whereas philosophically inclined theorists have taken it to be sovereign. The thought behind the subordinate conception is obvious enough. Ordinary tort adjudication does corrective justice; a theory of tort worthy of the name ought to explain way. The argument for the sovereignty of corrective justice is less obvious. It grows out of a critique of the economic analysis of tort developed by Jules Coleman and Ernest Weinrib. In a nutshell, they argue that corrective justice is a backwards-looking practice and is therefore poorly explained by the forward-looking logic of economic analysis.
On their face, the central concepts of negligence law — duty, breach, harm, actual and proximate cause — hang together to articulate a relationship of right and responsibility between victim and injurer. Breach of duty is a reason to hold a defendant responsible for harm done to a victim by the breach of that duty. Tort law looks backwards toward the past interactions of the parties in order to determine if the defendant should be held responsible for the plaintiff’s injury. For orthodox economic analysis, however, liability is not imposed because the defendant breached a duty of care and was the actual and proximate cause of harm done. Liability is imposed when and because we rightly conclude that the imposition of liability for past harm will induce optimal prevention of accidental harm going forward. For economics, the concepts of duty, breach, actual and proximate cause, and harm are not the real grounds of liability. They are evidentiary markers that do a respectable job of identifying cheapest cost-avoiders going forward.
This chapter argues that the corrective justice critique of economic analysis is powerful, but that the conclusion that corrective justice is the sovereign principle of tort, and perhaps even private law more generally, is not. Corrective justice in tort looks back to the violation of tort law’s primary norms. Those norms, and the values they seek to institute, deserve to be at the center of our understanding of the field. For the economic analysis of tort, the path forward may lie in moving towards the kind of indirect account of the institution now familiar in property scholarship. Such an account would give due recognition to the norms that figure prominently in tort adjudication, and seek to show how the institution as a whole is justified by its desirable consequences.