TortsProf Blog

Editor: Christopher J. Robinette
Southwestern Law School

Wednesday, May 22, 2024

Freeman on Blankfein-Tabachnick & Kordana on Rawlsian Contractualism and Private Law

Samuel Freeman has published A Response to David Blankfein-Tabachnick & Kevin A. Kordana, On Rawlsian Contractualism and the Private Law.  The abstract provides:

In their 2022 essay, David Blankfein-Tabachnick and Kevin Kordana reaffirm and further develop their long-standing position that John Rawls’s principles of justice, including the difference principle, should apply to determine and interpret private law, including not just property and contract law, but also torts. In recent papers, Samuel Scheffler and I have made similar arguments, though we have modestly departed from their views.  I contend that, while the difference principle applies to much of the private law of property and contract, it does not apply to all tort law. Rather, in tort law, the difference principle applies primarily to economic torts in unjust economic systems that do not satisfy Rawls’s difference principle in the first place. Blankfein-Tabachnick and Kordana (hereinafter “the Authors”) contest my argument, as well as my contention that Rawls’s difference principle requires maximizing the position of society’s less advantaged relative to the more advantaged, not their absolute position. After a brief summary of my position, I discuss why I believe the difference principle, under Rawls’s final interpretation of it, is often not suitable for consistent application in determining personal tort liability and remedies, even though the principle can play a significant role in economic torts involving the violation of economic rights and liberties. I also discuss why the difference principle is best understood to require society to maximize the relative, not absolute, position of the least advantaged. I conclude with some remarks on Rawls’s own reservations regarding courts’ interpretation and enforcement of the difference principle, or any principle that structures the economy, including economic efficiency and utilitarian wealth maximization.

Scholarship | Permalink