Duties of Corrective Justice and Historical Emissions

This paper addresses the question of whether agents have incurred duties of corrective justice to bear the costs of climate change in virtue of having produced historical emissions, or emissions produced when it was still reasonable to be ignorant of the causes and harmful consequences of climate change. It argues that it is likely that agents have incurred duties of corrective justice in virtue of having produced some of their historical emissions, given that it is likely that they would have produced these emissions had they known, when they produced them, that the emissions would contribute to harmful climate change.

On the Alleged Insufficiency of the Polluter Pays Principle

Several theorists of climate change justice have argued that the polluter-pays principle fails to assign duties that, if fulfilled, would be sufficient to prevent or compensate for all climate change-induced harm to persons. This paper contends that their argument for this claim rests on a faulty account of how the costs of rectifying a collectively-caused harm or threat of harm should be allocated among agents who have incurred duties of corrective justice to bear these costs. Given a more plausible account of how these costs should be allocated, it is likely that the polluter-pays principle does in fact assign duties that, if fulfilled, would be sufficient to prevent or compensate for all climate change-induced harm to persons.

Private liability without wrongdoing

Rights-based theories of private law tend to be wrongs based and defendant focused. But many private law wrongs do not seem like genuine wrongs, at least when the background distribution of resources is unjust. A very poor person, for example, may be held legally liable for breaching a one-sided contract with a very rich person. When such a contract reflects and reproduces existing injustice, it is hard to view the poor person’s breach of such a contract as a genuine wrong against the rich person. Conversely, some obvious moral wrongs do not generate legal liability. There is, for example, no private law duty of rescue in the absence of a prior relationship in many situations in which most would agree that there is a moral duty of rescue. Thus, private legal liability seems not to track moral wrongdoing in significant respects, raising the question what instead justifies such liability. Instead of justifying private liability in terms of the defendant’s wrongdoing, as corrective justice and civil recourse theorists do, we should seek a justification in terms of the plaintiff’s moral permission to enforce her apparent rights. Switching our gaze from the defendant’s wrongdoing to the plaintiff’s moral permission to enforce her rights will not be normatively consequential if the plaintiff’s moral permission arises when and only when the defendant has wronged her. But, I argue, background injustice can drive a wedge between genuine wrongdoing and the plaintiff’s moral permission. Thus, by reconceptualizing private liability in terms of a plaintiff’s moral permission to enforce her apparent rights, private law may be justified by the essential role it plays in constituting non-ideal political morality.

ESTABLISHMENT OF THE FACTUAL CAUSATION IN TORT

The article examines the moral basis and significance of causation from the standpoint of corrective justice; the division of factual and legal causation, as well as the theory of conditio sine qua non and NESS test, are critically analyzed; the problems of the former are discussed, while the preference of the latter is justified, with special attention to the torts committed by omission; the relation of factual causation as a matter of substantive law to the procedural form of its reflection is established through the discussion of issues of allocation of burden of proof and standards of proof, as well as admissibility of scientific and statistical evidence of factual causation.

The Public Right and Wrongs: Tort Theory and the Problem of Public Nuisance

Tort theory over the past two decades has been characterized by a fruitful dialectic between two models. Instrumentalism, especially, in its deterrence mode, has been promoted by a wide coalition of scholars and jurists. In response, various critics of instrumentalism have argued for the autonomy of tort law, first under the umbrella of corrective justice and later under civil recourse. The success of civil recourse depends in part on its ability to explain emerging areas of focus in tort law. One such area is public nuisance, which, despite some setbacks, is viewed by the plaintiffs bar, state actors, and some members of the academy as an effective tool to address significant social problems, such as the opioid crisis. This article asks whether, and how, civil recourse theory can accommodate modern public nuisance law.

Social Justice Tort Theory

Alongside the dominant law and economics and corrective justice approaches to tort law, a new genre of tort theory based on principles and perspectives of social justice has come into its own and deserves recognition. Social justice tort theory starts from the premise that tort law reflects and reinforces systemic forms of injustice in the larger society and maintains that the compensatory ideal of tort law cannot be extricated from these larger systems. It is multi-dimensional and intersectional, recognizing that the impact of injury lands intersectionally, sometimes changing the intensity of the injury or distorting the nature of the injury. Social justice tort scholars have examined torts in gendered and racialized contexts, as well as in ordinary cases that seem to have little to do with systemic injury. In addition to feminist and critical race theory, they have borrowed from critical disability studies, queer theory and political economy. Their work demonstrates how tort law unfairly distributes damages, fails to provide adequate relief for victims of sexual assault or for people who suffer racial insult and discrimination, and erases maternal and reproductive harms. In their work, we can see common deconstructive moves (an emphasis on disparate impacts and devaluation; a teasing out of cognitive bias; and a critique of exceptionalism in tort doctrine) as well as guiding principles for reconstruction (incorporating victims’ perspectives; treating boundaries between civil rights law and tort law as permeable; and enhancing dignity and recognition).

1. Introduction

This introductory chapter begins by providing examples of torts. It then discusses the aims of the law of torts, the most significant being compensation and deterrence. Part of the justification for a tort is that it identifies what actions should be avoided and deters people from engaging in them. It is essential to know that action is wrongful, but a tort action may over-deter or under-deter. It may over-deter where the perception of the chance of liability is exaggerated. It may under-deter where either the chances of somebody suing to enforce their rights are small, or where the consequences to the individual tortfeasor may be slight. Originally tort was about ‘shifting’ or ‘transferring’ the loss from the victim to the defendant (corrective justice). The defendant themselves paid compensation to the victim. However, those days are gone and we are now in an era of ‘loss distribution’. In other words, it is not the defendant himself who pays, but it will be their, or their employer’s, insurer. The chapter then considers the study of torts. Tort law is almost wholly a case-driven subject and therefore a good knowledge of the cases and what they stand for is essential. The chapter presents three steps to studying cases.

Corrective Justice and Reparations for Black Slavery

Over the last two decades, legal scholarship has been catching up with the more than century old calls by black Americans for reparations.1 Tax scholar Boris Bittker (in)famously launched the viability of black reparations into legal scholarship with his now classic monograph, The Case for Black Reparations.2 However, it would take more than twenty years for mainstream legal scholarship to take up the robust and wide-ranging set of questions raised by the possibility of reparations for American slavery.3 In the late 1990s private law scholars leapt into the debate, discussing unjust enrichment and torts-based models of black reparations.4 While these scholars made a variety of distinct arguments, collectively, their model rested on the contention that America had wrongfully expropriated the labor of generations of enslaved African Americans and the result had been systemic unjust enrichment, or a species of mass torts. Grounded in various conceptions of corrective justice, these models conceive black reparations as a set of claims that would be litigated through the courts. Over the ensuing two decades, the private law model has become somewhat of an outlier in reparations discussions, largely set aside in favor of broader, more explicitly political approaches.

The Purpose of Equity

‘The way is equity, the end is justice’, wrote the umpire in the Aroa Mines case. The chapter probes the ethical foundations of equity in international law and argues that the overarching purpose of equity is to do justice. In this light, it surveys equity as corrective, distributive, and supplementary justice. Under the heading of corrective justice, the chapter canvasses equity as individualised justice and as justice that tempers the rigour of the law. Distributive justice is conceptualised in relation to the allocation of resources and the sharing of benefits and burdens, the common heritage of mankind, intergenerational equity, and equitable representation in the composition of international bodies. The chapter further reviews equity as supplementary justice, when legal rules are absent. The analysis shows that the different roles of equity as justice overlap and stresses that justice provides the backbone and rationale for the broader need for equity.