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Compensatory Justice: Nomos XXXIII

Edited by John W. Chapman
Copyright Date: 1991
Published by: NYU Press
Pages: 374
https://www.jstor.org/stable/j.ctt9qfzn3
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  • Book Info
    Compensatory Justice
    Book Description:

    This Major Reference series brings together a wide range of key international articles in law and legal theory. Many of these essays are not readily accessible, and their presentation in these volumes will provide a vital new resource for both research and teaching. Each volume is edited by leading international authorities who explain the significance and context of articles in an informative and complete introduction.

    eISBN: 978-0-8147-9014-4
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. CONTRIBUTORS
    (pp. ix-x)
  4. PREFACE
    (pp. xi-xii)
    J.W.C.
  5. INTRODUCTION
    (pp. 1-10)
    JOHN W. CHAPMAN

    NOMOS XXXIII opens with an exploration of the significance of rights for compensatory justice. Loren E. Lomasky offers an array of fiendishly illuminating variations on Joel Feinberg’s famous backpacker who breaks into and ransacks a cabin to save his life. How should we understand this action and the rights that are involved in it? Lomasky urges us to look upon ourselves as “project pursuers,” who have lives to lead that can only be our own. And each of us has a “maximally weighty duty” not to harm others by infringing on their rights, rights they have as fellow project pursuers....

  6. PART I: RIGHTS AND COMPENSATORY JUSTICE

    • 1 COMPENSATION AND THE BOUNDS OF RIGHTS
      (pp. 13-44)
      LOREN E. LOMASKY

      Joel Feinberg tells the following story:

      Suppose that you are on a backpacking trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that your life is imperiled. Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates. During this period you help yourself to your unknown benefactor’s food supply and burn his wooden furniture in the fireplace to keep warm. Surely you are justified in doing...

    • 2 DOES COMPENSATION RESTORE EQUALITY?
      (pp. 45-82)
      GERALD F. GAUS

      What does compensatory justice seek to accomplish?* A formal answer, of course, is that, like all justice, it seeks to assure each his due. Aristotle’s analysis of “corrective” or “rectificatory” justice, however, proffers a more specific answer:

      What the judge aims at doing is to make the parts equal by the penalty he imposes, whereby he takes from the aggressor any gain he may have secured. The equal, then is a mean between the more and the less. But gain and loss are each of them more or less in opposite ways, more good and less evil being gains, the...

  7. PART II: HISTORICAL CONSIDERATIONS

    • 3 JUSTICE BETWEEN GENERATIONS: COMPENSATION, IDENTITY, AND GROUP MEMBERSHIP
      (pp. 85-96)
      JAMES S. FISHKIN

      Justice between generations confronts us with the issue of how to think about the interests of possible people. When we think of future generations, the interests in question are those of future possible people. When we think of compensation for past injustice, the interests in question, for purposes of determining compensation, are those of counterfactual, possible people—the people who would have existed had an injustice not occurred. The difficulty, of course, is that any people who receive compensation are not, themselves, counterfactual. To receive compensation, they must actually exist. Yet some consideration of what would have happened, had the...

    • 4 SET-ASIDES, REPARATIONS, AND COMPENSATORY JUSTICE
      (pp. 97-140)
      ELLEN FRANKEL PAUL

      Compensatory justice has, in recent years, surpassed distributive justice as a highly contentious moral concept, debated in both the political arena and philosophical discourse.* Ideological adversaries surely still argue about whether or not more redistribution would be a socially advantageous or a morally mandatory goal, but the really heated controversies have shifted elsewhere. Since the late 1960s—especially after the advent of affirmative action under President Lyndon Johnson’s Executive Order No. 112462¹—programs of a putatively compensatory nature have proven highly divisive, with the “winners” claiming their preferences as a right and the “losers” denouncing their impediments as reverse discrimination...

  8. PART III: COMPENSATORY AND DISTRIBUTIVE JUSTICE

    • 5 COMPENSATION AND REDISTRIBUTION
      (pp. 143-177)
      ROBERT E. GOODIN

      Compensatory justice is profoundly conservative. Across its diverse range of applications, it usually serves to restore some status quo ante. That is characterized in various different ways: as the same position people were in before others wronged them (compensatory damages, in the law of torts); as the same position people were in before public takings of their private property (just compensation, in the law of eminent domain); as the same position people were in before changes in public policy put them out of work (compensation provisions in legislation liberalizing trade, deregulating airlines, and extending the boundaries of national parks); as...

    • 6 COMPENSATION WITHIN THE LIMITS OF RELIANCE ALONE
      (pp. 178-185)
      ELIZABETH ANDERSON

      Robert Goodin’s chapter, “Compensation and Redistribution,” makes three central claims. First, the true justification for compensation lies in the fact that people have reasonably relied on the continuation of a state of affairs. Second, if we justify compensatory schemes by appealing to the substantive justice of the status quo that compensation seeks to restore, then we could not justify measures to redistribute property holdings. Third, the same considerations that make reasonable reliance morally relevant for compensation may also justify redistribution. I shall argue that while the first two claims are doubtful, Goodin provides us with the resources to construct a...

    • 7 ON COMPENSATION AND DISTRIBUTION
      (pp. 186-192)
      SAUL LEVMORE

      My comments on and objections to Goodin’s “Compensation and Redistribution” grow in large part out of a perspective that insists that the roles of compensation and deterrence, or even of incentive effects in general, cannot easily be separated from one another. This is true in the law of torts, in eminent domain, and perhaps elsewhere as well. And if liability rules are meant to serve a deterrence purpose, or even a combined deterrence and compensation function, then the question of the “compatibility” of efforts to preserve the status quo, and attempts to change it, largely dissolves because liability rules and...

  9. PART IV: THE TAKINGS ISSUE

    • 8 COMPENSATION AND GOVERNMENT TAKINGS OF PRIVATE PROPERTY
      (pp. 195-222)
      STEPHEN R. MUNZER

      I present here an account of when compensation is due for government takings of private property. The main idea is that a pluralist theory of property rights yields the soundest approach to takings and compensation. However, I provide few legal details and I only outline, rather than justify, a trio of underlying principles.

      The structure of this chapter is as follows. Section 1 explains the problem. Section 2 outlines a pluralist theory that will be used to solve it. The theory contains principles of utility and efficiency, justice and equality, and desert based on labor. Section 3 articulates some fundamental...

    • 9 PROPERTY AS WEALTH, PROPERTY AS PROPRIETY
      (pp. 223-247)
      CAROL M. ROSE

      Stephen Munzer’s interesting and provocative chapter speaks of a “taking” of property as anything that “adversely affects” one’s property rights, and he considers a variety of compensation devices that might offset governmental takings “fully” or something less than fully. But the concept of “taking” property does not really make sense unless we have some idea of what one’s property right includes in the first place: without that underlying understanding, we couldn’t really tell what measures might affect the right adversely, and certainly we couldn’t tell what would be “full” compensation for adverse effects, or anything less than “full” compensation.

      This...

    • 10 DIAGNOSING THE TAKINGS PROBLEM
      (pp. 248-278)
      MARGARET JANE RADIN

      “The philosopher’s treatment of a question is like the treatment of an illness,” said Wittgenstein, in one of my favorite remarks of his.¹ Here I would like to reflect upon the malaise that afflicts what legal scholars call the taking issue. The taking issue requires a court to determine when government action that adversely affects someone’s claimed property interest should be understood to “take” that person’s property. Under the Constitution, government actions that “take” property are disallowed unless compensation is paid.² The malaise is that no one can tell with satisfactory certainty what government actions those are.

      How should we...

  10. PART V: LEGAL CULTURES

    • 11 THE LIMITS OF COMPENSATORY JUSTICE
      (pp. 281-310)
      CASS R. SUNSTEIN

      The model of compensatory justice is the staple of Anglo-American legal systems.* One person harms another; the purpose of the lawsuit is to ensure that the victim is compensated by the aggressor. Drawing from this basic understanding, the model of compensatory justice is organized around five basic principles.

      1. The event that produced the injury is both discrete and unitary.

      2. The injury is sharply defined in time and in space.

      3. The defendant’s conduct has clearly caused the harm suffered by the plaintiff. The harm must be attributable to the defendant, and not to some third party or to “society.”

      4. Both plaintiff...

    • 12 COMPENSATION AND RIGHTS IN THE LIBERAL CONCEPTION OF JUSTICE
      (pp. 311-329)
      RANDY E. BARNETT

      In the previous chapter on “The Limits of Compensatory Justice,” Cass Sunstein offers two distinct theses. First, he defines a conception of compensatory justice that he claims lies at the root of Anglo-American legal systems. Second, he contends that in a number of doctrinal areas this model of compensatory justice is incompatible with the best theories that underlie the claims being made by plaintiffs. I will call the first of these arguments the “compensatory justice thesis” and the second the “incompatibility thesis.”

      In part I of my commentary, I question the accuracy of the compensatory justice thesis and suggest that...

    • 13 BEYOND COMPENSATORY JUSTICE?
      (pp. 330-354)
      DAVID JOHNSTON

      According to Cass Sunstein, principles of compensatory justice are misplaced in numerous areas of public and private law. Attempts to apply these principles to cases involving claims of probabilistic or systemic harm, or racial or gender discrimination have led to numerous and needless legal disputes and confusions as well as to incorrect, nonsensical, or irrational results. In these areas of law, compensatory notions ought to be abandoned in favor of alternative conceptions of the function of legal controls. Sunstein proposes that some of these cases can best be understood by reference to principles of risk management, while others should be...

  11. INDEX
    (pp. 355-363)
  12. Back Matter
    (pp. 364-365)