Tortious Harms

Abstract

This chapter examines the recent revival of a corrective justice approach to tort law. Seeking to reclaim tort theory from the now dominant welfarist perspective, corrective justice theorists like Ernest Weinib, Arthur Ripstein, Jules Coleman, and John Goldberg have stressed the corrective justice roots of the rules governing compensation for “wrongful” acts. The literature is either silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. The failure of corrective justice theorists to address the central regulatory question at issue in tort law—appropriate standards of conduct—results from their conflating prohibition and compensation; viewing the tort system in isolation from the larger regulatory regime; and treating the imposition of risk and imposition of harm as distinct forms of conduct, rather than the identical conduct viewed from different temporal perspectives.