Gregory C. Keating is a professor of Law and Philosophy at the University of Southern California and teaches legal ethics, seminars and torts in political and legal philosophy. He is also an editor of a torts casebook and writes on torts, legal theory and professional responsibility.
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In his Article ‘Distributive and corrective justice in the tort law of accidents', Keating explains that the theoretical foundation of tort theory is torn between two competing conceptions, the justice conception and the economic conception, where the former takes tort law of accidents to be continuous with our ordinary notions of ‘agency and responsibility, carelessness and wrongdoing, harm and reparation' and the latter supports that tort accident law should express an appropriate scientific conception of human welfare. Keating argues that theorists in the justice conception have generally supported that, in tort law, justice is a matter of corrective justice, concerned all but exclusively with the rectification of losses wrongfully inflicted and although he supports that this is an attractive position, since rectification is central to tort accident law, he challenges that belief, arguing that the advantages of corrective justice have however come at a cost. He firstly supports that ‘the rhetoric of tort law is rife with appeals to fairness' and the arguments about fairness have been difficult to fit into a corrective justice framework. Secondly he argues that theorists of the corrective justice conception have been led to place great weight on the concept of wrongdoing, which has led to overemphasizing the attractiveness and importance of negligence liability and has made strict liability difficult to justify, whereas distributive justice helps to justify and explain the existence of strict liability in tort law. Keating therefore supports that tort law should be only secondarily matter of corrective justice and primarily a matter of distributive justice, a matter of the fair apportionment of the burdens and benefits of risky activities. As Keating presents, distributive justice views the law of torts from the point of view of those affected by it and has its roots in the social contract tradition, asking what they might reasonably expect of each other in the way of reparation and precaution. On the other hand, Keating supports that there is not a single agreed-upon account regarding corrective justice and therefore he uses the corrective justice conception of Jules Coleman as his touchstone, concluding that corrective justice consists of four elements, firstly it applies to human agency, secondly it is concerned with repair or rectification, thirdly it is concerned with rectifying a kind of wrongdoing, with ‘wrongful losses’ in Coleman’s case, and fourthly, it involves correlativity. Keating argues that the tort law of accidents, on the fairness conception, is only secondarily a matter of corrective justice and primarily a matter of distributive justice.
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