Publication Year: 1991
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.
Published by: NYU Press
Title Page, Copyright Page
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This thirty-third volume of NOMOS began with presentations and commentaries at the meeting of The American Society for Political and Legal Philosophy held in conjunction with the annual meeting of the Association of American Law Schools in New Orleans, 5-8 January 1989. As required by our constitution...
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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...
PART I: RIGHTS AND COMPENSATORY JUSTICE
1. COMPENSATION AND THE BOUNDS OF RIGHTS
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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...
2. DOES COMPENSATION RESTORE EQUALITY?
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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...
PART II: HISTORICAL CONSIDERATIONS
3. JUSTICE BETWEEN GENERATIONS: COMPENSATION, IDENTITY, AND GROUP MEMBERSHIP
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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...
4. SET-ASIDES, REPARATIONS, AND COMPENSATfORY JUSTICE
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Compensatoryjustice 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 advantag'eous or a morally mandatory...
PART III: COMPENSATC)RY AND DISTRIBUTIVE JUSTICE
5. COMPENSATI()N AND REDISTRIBlTTION
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Compensatory justice is profoundJly conservative. Across its diverse range of applications, it usulally 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...
6. COMPENSATION WITHIN THE LIMITS OF RELIANCE ALONE
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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...
7. ON COMPENSATION AND DISTRIBUTION
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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,...
PART IV: THE TAKINGS ISSUE
8. COMPENSATION ANDI GOVERNMENT TAKINGS OF PRIVA'TE PROPERTY
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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. Ho'wever, I provide few legal details and I only outline, rather than justify, a trio of underlying...
9. PROPERTY AS WEALTH, PROPERTY AS PROPRIETY
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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...
10. DIAGNOSING THE TAKINGS PROBLEM
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"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...
PART V: LEGAL CULTURES
11. THE LIMITS OF COMPENSATORY JUSTICE
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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....
12. COMPENSATION AND RIGHTS IN THE LIBERAL CONCEPTION OF JUSTICE
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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...
13. BEYOND COMPENSATORY JUSTICE?
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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...
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Page Count: 373
Publication Year: 1991