Liberalism and Tort Law: On the Content of the Corrective-Justice-Securing Tort Law of a Liberal, Rights-Based Society

In this article, Professor Markovits delineates what he considers to be the tort-related moral rights and obligations of members of a liberal, rights-based society as well as the tort-related moral and constitutional obligations of a government of a liberal, rights-based society. A rights-based society prioritizes the just over the good, and a liberal, rights-based society derives its moral-rights conclusions from its commitment to valuing most highly individuals’ leading lives of moral integrity.Professor Markovits argues (inter alia) that liberalism implies that the concrete standard of wrongfulness that should be applied to choices made by someone who knew or should have known that his choice would impose “net losses” on others will depend on the nature of the loss in question: when the relevant “net loss” is a “mere utility” loss, the wrongfulness-standard that liberalism warrants resembles the Hand for-mula for negligence; when the chooser knew or should have known that his choice would or might disserve the interests of one or more of his so-ciety’s members and participants in having and seizing the opportunity to lead a life of moral integrity, his choice will be wrongful if he should have concluded ex ante that, on balance, it would disserve this interest of his society’s members and participants.

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