Category Archives: Deontic theory
Goldberg and Zipursky, ‘Tort Law and Responsibility’
Abstract: It borders on banality to observe that tort law enables injury victims to hold tortfeasors responsible for having wrongfully injured them. Yet modern torts scholarship has largely obscured the centrality of responsibility to tort law. This is true not only of avowedly instrumental and prescriptive theories, but also of many corrective justice theories. In [...]
Goldberg and Zipursky, ‘Civil Recourse Defended: A Reply to Posner, Calabresi, Rustad, Chamallas, and Robinette’
Abstract: As part of a symposium issue of the Indiana Law Journal devoted to our Civil Recourse Theory of Tort Law, we respond to criticisms by Judge Calabresi, Judge Posner, and Professors Chamallas, Robinette, and Rustad. Calabresi and Posner criticize Civil Recourse Theory as a bit of glib moralism that fails to generate useful answers [...]
Depoorter and Tontrup, ‘How Law Frames Moral Intuitions: The Expressive Effect of Specific Performance’
Abstract: Some contract theorists favor specific performance as the appropriate remedy for contract breach. According to ethical theorists, specific performance reinforces the moral obligation that promises should be kept. Some economists argue that specific performance promotes efficient contract bargaining. This Article challenges this conventional wisdom, showing that moral evaluations and the willingness to bargain are [...]
Shubha Ghosh, ‘Duty, Consequences, and Intellectual Property’
Abstract: Drawing on Amartya Sen’s discussion of The Bhagavad Gita and Hindu concepts of justice (niti and nyaya), this paper examines ethical issues related to the construction of intellectual property policy. The author analyzes deontic, or duty based, and consequentialist theories of law within the context of the debate between Arjuna and Krishna in The [...]
Eric Claeys, ‘On the “Property” and the “Tort” in Trespass’
Abstract: This Chapter studies how tort presumes and implements theories of rights. Although most recent philosophical scholarship on tort has focused on corrective justice, by and large that scholarship takes for granted that tort corrects wrongs to substantive moral rights. The morality that generates these rights is separate from and logically-prior to corrective justice. Philosophical [...]
Andrei Molchynsky, ‘The Translator as a Traitor: A Comparative and Jurilinguistic Glance at the Polysemous Notion of “Right” in Private Law’
Abstract: In this article, the author examines the difficulties encountered by the common law scholars in translating the Latin word ius and its civilian counterparts, such as droit and Recht, into English. To demonstrate this perplexity, the author analyses the works of two authoritative Englishmen who were well trained in classics – Thomas Hobbes and [...]
Patrick Russell Goold, ‘Corrective Justice and Copyright Infringement’
Abstract: This article demonstrates that one crucially important function of copyright infringement cases is corrective justice. However, because scholars and lawmakers often conceive of copyright in solely economic terms, this goal is often overlooked and demonstrable unfairness occurs as a result. The article uses tort law theory to make three points. Firstly, the economic theory [...]
Erik Encarnacion, ‘Corrective Justice as Making Amends’
Abstract: Corrective justice theories of tort law claim that tort law’s basic structure must be understood in terms of moral principles of corrective justice. Formulations of these principles vary, but they hold (roughly) that one person who injures another wrongfully has a duty to repair the losses associated with that injury. In the last decade, [...]
Zoë Sinel, ‘Concerns about Corrective Justice’
Abstract: According to the principle of corrective justice, one who causes a wrongful loss or receives a wrongful gain is obligated to make good that loss or restore that gain. The guiding principle of the remedies of private law (the law of torts, contract, and unjust enrichment) is to put the aggrieved party in the [...]
Jedediah Purdy, ‘Some Pluralism About Pluralism: A Comment on Hanoch Dagan’s “Pluralism and Perfectionism in Private Law”’
“Hanoch Dagan is among ‘those who think it advantageous to get as much ethics into the law as they can’, in the phrase of Oliver Wendell Holmes, Jr. His pluralism is a perfectionism for polytheists: There are many human goods, and each has its domain, including some portion of the law of property. Depending on [...]
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