What is Tort Law for? Part 2. The Place of Distributive Justice

Abstract

This is the promised sequel to my paper 'What is Tort Law For? Part 1. The Place of Corrective Justice'. I argue that, in addition to the many ways in which tort law may raise exogenous questions of distributive justice, it raises at least two endogenous questions of distributive justice. They are: (1) how to distribute legal rights to corrective justice? and (2) how to effect distributions between two parties where the parties are brought together by corrective justice? As these formulations show, these distributive questions cannot be understood independently of tort law's corrective role. That is the sense in which they are endogenous to tort law. As well as defending the sense and salience of these qustions I cast doubt on the proposal, most famously developed by Tony Honoré, that they should be cast as questions of 'risk-distributive justice'.

Keywords: justice, torts, corrective, distributive, initial entitlements, risk, rights, powers, parties, Ernest Weinrib, Guido Calabresi, A Douglas Melamed, Stephen Perry, Tony Honoré