Dear Mitchell,

I had a look for Barker's article today but couldn't find it in our library. I'm not sure what sources are cited there but I will offer some thoughts anyway.

The classic starting pointing is obviously Aristotle's Ethics. He distinguished corrective (also translated as 'rectificatory' and 'commutative' in various editions) justice from distributive justice and subsequently there has been a tendency to regard the former as the province of the judiciary in formulating the common law while the latter is the province of the legislature. The idea was that corrective justice simply involves returning the parties to the status quo that prevailed before the events in question took place. It is regarded as particularly compelling for this reason. A classic and highly influential discussion of corrective justice and the strength of different claims for relief appears in Fuller and Purdue, 'The Reliance Interest in Contract Damages' 46 Yale LJ 52 (1936). Fuller regards cases of restitution by subtraction as presenting a much more powerful claim for relief than ones for compensation in tort and regarded claims for compensation in respect of executory contracts as particularly weak. Restitution by subtraction is really the paradigm case of corrective justice as the idea behind is restoring what was taken and thus restoring the parties status quo. In fact Aristotle tried to fit the rest of the private law into this paradigm by arguing that compensation for wrongs in fact involved restitution as the wrongdoer could be regarded as gaining from his wrong. This seems dubious and this is Coleman's argument in the article Lionel Smith mentioned. In fact the place of tort within corrective justice is more problematic. I think Jeremy Waldron also discusses this in the context of a review of Coleman's Markets and Morals in the Yale Law Journal a few years back.

I am not sure what aspect of 'at the expense of the plaintiff' you are interested in but restitution for wrongs is particularly interesting in this context. It is very difficult to justify this form of relief as corrective justice. Thus Birks sees it largely in terms of providing a deterrent - the 'prophylactic' principle. Others see it as having a retributive motive. There is a very interesting discussion of restitution for wrongs and corrective justice in Stevens, 'Restitution, Property and the Cause of Action in Unjust Enrichment' (1989) 39 U of TJ 258. The issue is considered in the latest edition of the Restitution Law Review by Jaffey, 'Restitutionary Damages and Disgorgement' where he considers the various rationales for relief in this context. Generally the question of the rationale for relief in the context of restitution for wrongs is also central to the question of whether that relief should be personal or proprietary. There is a lot of literature on these issues (see eg the references in Jaffey to Birks, Smith and Jackman). A very good discussion of corrective justice and the question of proprietary relief appears in Sherwin, 'Constructive Trust in Bankruptcy' [1989] Illinois L Rev 297.

Good luck
Craig Rotherham
Sussex