Omri Rachum-Twaig and Ohad Somech (Tel Aviv University – Buchmann Faculty of Law and Tel Aviv University – Buchmann Faculty of Law) have posted The Right-Based View of the Cathedral: Liability Rules and Corrective Justice (Pepperdine Law Review, Vol. 44, Forthcoming) on SSRN. Here is the abstract:
In their celebrated paper, Calabresi & Melamed offered a framework that explains when and why entitlements should be protected using different sets of rules, often referred to as the ''Cathedral'' analysis. These included two main rules – property rules and liability rules. This framework is now a widely accepted way to explain some private law doctrines. However, cases that could be easily explained as an application of liability rules under this framework are usually difficult to explain under the private law theory of correlative corrective justice. This is because the basic idea underlying the theory of corrective justice is in conflict with the notion of liability rules – rules that allow the non-consensual appropriation of property subject to compensation. This Article attempts to reconcile liability rules under the Cathedral analysis and corrective justice. To do so we discuss three positive examples of pure liability rules and analyze them under a new model that we believe fits with corrective justice. After showing that corrective justice, using our proposed model, could explain such rules, we discuss further implications of the model.