Open Access. Powered by Scholars. Published by Universities.®
- File Type
Articles 1 - 2 of 2
Full-Text Articles in Jurisprudence
Is Tort A Remedial Institution?, Gregory C. Keating
Is Tort A Remedial Institution?, Gregory C. Keating
Gregory C. Keating
In the past 30 years, philosophers of tort have performed invaluable work in restoring the concept of a “wrong” to prominence in tort scholarship, and in building a persuasive case that no adequate account of tort can replace the idea of a “wrong” with the idea of a “cost”. The structure of tort adjudication, which pits an injured victim against the party allegedly responsible for injuring her, is powerfully explained and justified by the thesis that the plaintiff has a claim for redress against the defendant when and because the defendant has wronged the plaintiff. The competing claim that tort …
Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory Keating
Rawlsian Fairness And Regime Choice In The Law Of Accidents, Gregory Keating
Gregory C. Keating
Early in the 1970's George Fletcher wrote a remarkable article Fairness and Utility in Tort Theory—connecting distinctively Rawlsian ideas of fairness with reciprocity of risk imposition. Fletcher argued that nonreciprocity of risk both characterized realms of strict liability in tort and justified those realms, whereas reciprocity of risk characterized realms of tort law which were governed by negligence liability, and appropriately so. This article argues (1) against Fletcher’s identification of fairness in the choice of an accident law regime with the presence or absence of reciprocity of risk, and (2) in favor of focusing on the fair distribution of the …