… 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.
Keating, Gregory C, Corrective Justice: Sovereign or Subordinate? (August 16, 2019). Forthcoming in Henry Smith et al (eds), The Oxford Handbook of the New Private Law; USC CLASS Research Paper No CLASS19-24; USC Law Legal Studies Paper No 19-24.