Benjamin C. Zipursky

Corrective Justice in an Age of Mass Torts

Corrective justice theory has been the subject of many, often inconsistent, attacks. Sometimes it is criticized on the ground that it provides no practical guidance as to how cutting edge issues of tort law ought to be resolved. Sometimes it is criticized for providing only normative guidance, and failing to accommodate what the tort law actually says. Sometimes it is criticized for both at once. And sometimes it is criticized for being simply off track for missing what is central in law the drive of money and deep pockets.These objections are nicely exemplified in discussions of contemporary mass tort law. The question arises as to whether a plaintiff who suffered injuries from a defective product should ever be able to recover from a manufacturer of that type of product, even if the plaintiff cannot prove that the particular product or products that injured her were manufactured by the defendant.In this article, we take the bull by the horns and use corrective justice theory to do one of the things that legal theory is supposed to do: to frame a legal dilemma that needs to be probed more deeply in order to arrive at a more satisfactory resolution; to articulate the framework of goals and normative principles that animate the area of law in question; and to apply that framework to arrive at a conceptually and normatively satisfactory solution to the problem, one which coheres with the well-established precedent and principles of tort law, which reflects the principles of justice underlying the law, and which sits well with a pragmatic approach to the law.