ENCARNACION — Volume 62, Issue 2

Tort theorists explain tort law through corrective justice—the principle that one who wrongfully injures another incurs a duty to repair losses. Yet leading civil recourse theorists, particularly Goldberg and Zipursky, have objected that corrective justice inadequately accounts for tort law's diversity of remedies, substantial standing doctrines limiting plaintiff access, and the structural fact that a duty to repair arises only following the tort itself. Encarnacion proposes a new conception of corrective justice capable of responding to these objections: the "making amends" theory. Rather than a duty of repair, this account holds that individuals responsible for wrongs have a duty to make amends to victims unless the victims do not want them to. Tort law operates as a public institution facilitating the amends-making process by mitigating recurring informal problems while protecting victims' morally important interests in controlling that process. Reparative relief should be understood as the default mode of making amends. This approach distinguishes between duty to repair (which is restrictive) and duty to make amends (which is more flexible), allowing response to the diversity of remedies available in tort and explaining how injured parties' interests factor into relief determinations. Encarnacion tests the making amends conception against civil recourse objections, demonstrating that instrumental appeals can explain and justify important aspects of tort law's structure without requiring major theoretical revisions.

Topics: Tort · Legal Theory

Keywords: corrective justice · tort law · civil recourse · reparative relief · duty to repair · making amends · Goldberg and Zipursky