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Home > School of Law > Student > Law Review > Vol. 46 > Iss. 3

 

Western New England Law Review

Abstract

This Article begins with the introduction of two competing schools in private law. One school claims that private law is to achieve efficient resource allocation or wealth maximization. The other school follows the bipolar structure of corrective justice with the assistance of the Kantian theory. While each side is very strong and elegant, neither is able to claim the totality of private law. Naturally, scholarship reconciling the two schools is urgently needed. Although there is a thin body of literature, trying to reconcile the two competing schools, the outcome has been far from satisfactory. This Article tries to fill an important gap in the literature by developing the communitarian version of Kantian right while taking into consideration the efficient resource allocation within the bipolar structure of corrective justice. After articulating such a theory, this Article has made an effort in analyzing empirical evidence from United States judicial practice to test whether the communitarian version of Kantian right can be supported. The Article then examines the failure of judicial analyses when the utilization of the communitarian version of Kantian right ignores the bipolar structure of corrective justice and keeps an inappropriate balance on the interaction of the relationship between private parties in private law and the relationship between the government and individuals under public law.

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