Article by: Omri Rachum-Twaig & Ohad Somech

2016 PEPP. L. REV. 74 (2017)

In their celebrated paper, Calabresi and Melamed offered a framework, often referred to as the ‘‘Cathedral’’ analysis, which explains when and why entitlements should be protected using two main sets of rules—property rules and liability rules.  This framework is now widely used to explain some private law doctrines.  However, cases that are easily explained as applications of liability rules are usually difficult to explain under the private law theory of correlative corrective justice.  This is because the basic idea underlying corrective justice conflicts with the notion of rules that allow the nonconsensual property appropriation subject to compensation.  In this Article, we attempt to reconcile liability rules under both 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 is consistent with corrective justice.  We then discuss the model’s further implications.

 

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