Private Law Theory

Introduction:
… This paper outlines a new conception of corrective justice capable of responding to these attacks. To see what motivates the conception, we will begin with some background. Part I explains the three main objections to traditional corrective justice theories advanced by civil recourse theorists. Part II sets out a recent attempt by Scott Hershovitz to revise corrective justice theory in response to these objections. Unfortunately, Hershovitz’s theory — the “getting-even” conception of corrective justice — faces a new set of difficulties, which are discussed in Part III. As we will see, the main difficulty is that Hershovitz’s theory blurs the line between retributive and corrective justice and hence distorts rather than illuminates tort law. The point of presenting and criticizing Hershovitz’s views is not simply to expose the shortcomings of a particular theory. Scrutinizing the limitations of Hershovitz’s approach will help us avoid pitfalls en route to an alternative. Part IV sketches a new account, which will be called the “making amends” theory of corrective justice … (more)

Erik Encarnacion, ‘Corrective Justice as Making Amends’. Buffalo Law Review, Volume 62, Issue 2, April 2014.

First posted 2014-06-30 12:24:32