The limits of a nonconsequentialist approach to torts

Legal Theory 18 (3):231-262 (2012)
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The nonconsequentialist revival in tort theory has focused almost exclusively on one issue: showing that the rules governing compensation for acts reflect corrective justice rather than welfarist norms. The literature either is silent on what makes an act wrongful in the first place or suggests criteria that seem indistinguishable from some version of cost/benefit analysis. As a result, cost/benefit analysis is currently the only game in town for determining appropriate standards of conduct for socially useful but risky acts. This is no small omission, and the failure of nonconsequentialists to acknowledge it or cure it can be traced to a number of recurring problems in the nonconsequentialist tort literature. Chief among them is the tendency to conflate prohibition and compensation, and to treat imposition of risk and imposition of harm as if they were distinct forms of conduct rather than the same conduct viewed from different temporal perspectives



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Citations of this work

Contractualism and risk preferences.Tobey K. Scharding - 2021 - Economics and Philosophy 37 (2):260-283.
A Unificationist Approach to Wrongful Pure Risking.Kritika Maheshwari - 2024 - Inquiry: An Interdisciplinary Journal of Philosophy 68.

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References found in this work

Who Can Be Wronged?Rahul Kumar - 2003 - Philosophy and Public Affairs 31 (2):99-118.
Beyond the Harm Principle.Arthur Ripstein - 2006 - Philosophy and Public Affairs 34 (3):215-245.
Can Contractualism Save Us from Aggregation.Barbara H. Fried - 2012 - The Journal of Ethics 16 (1):39-66.
What Does Matter? The Case for Killing the Trolley Problem.Barbara H. Fried - 2012 - Philosophical Quarterly 62 (248):505-529.

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