Compensation as a Tort Norm
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Description
The possibility that tort law can be justified by an abstract norm of compensation has been summarily dismissed by tort scholars. A compensatory norm would seem to justify the award of compensatory damages in all cases of harm, a form of liability that is obviously at odds with the default rule of negligence liability. A rigorous specification of a compensatory tort right shows otherwise. The correlative compensatory duty can be justified by the principle of liberal egalitarianism for reasons illustrated by the conception of equality articulated by Ronald Dworkin. The dutyholder is not obligated to pay compensatory damages in all cases of harm, because the exercise of reasonable care distributes risk in a manner that satisfies the compensatory right. Compensation is a defensible norm of corrective justice that can persuasively explain tort doctrine, despite the limited availability of the compensatory damages remedy.
Source Publication
Philosophical Foundations of The Law of Tort
Source Editors/Authors
John Oberdiek
Publication Date
2014
Recommended Citation
Geistfeld, Mark A., "Compensation as a Tort Norm" (2014). Faculty Chapters. 712.
https://gretchen.law.nyu.edu/fac-chapt/712
