Corrective Justice and Corporate Tort Liability

Abstract

From the introduction:

Many late nineteenth-century law teachers thought of the common law as a logical system based upon legal premises that yielded determinate-and correct-legal outcomes. Late twentieth century teachers tend to give a somewhat different account. They see common law decisionmaking as the application of a relatively compelling set of social policies to the resolution of individual cases. Thus, in teaching torts, many of us tell a deceptively simple story. There are three basic goals of tort law, we suggest: First, there is deterrence which requires that we formulate tort law in such a way that the fear of legal liability deters unsafe conduct; second, there is corrective justice which requires that we make a fair adjustment between the parties; and third, there is the goal of redistribution which requires that we find a deep pocket defendant who can either pay for the accident without hardship or can spread the costs among large numbers of people. Under this analysis, controversy in the tort law centers around the general question of whether some or all of these polices are appropriate goals for tort law and around the narrower question of whether some particular outcome accomplishes a particular goal.