ABSTRACT
This chapter deals with the normative question whether the attempt by courts to engage in redistribution is legitimate from a procedural justice perspective. Ernest Weinrib argues that choosing a certain distribution among several alternatives necessitates consideration of a collective goal which is external to the structure of corrective justice, and as such is political. The relative susceptibility of the judiciary, compared to the other two branches, to pressure from interest groups is likely to vary in different jurisdictions. If the judicial rule results in excessive progressive redistribution, the ‘haves’ will not block legislation intended to amend the court-made rule, because they will support the legislation and the disadvantaged will probably not succeed in blocking it because they do not have the requisite political muscle. In order to justify, on efficiency grounds, judicial deference with respect to redistributive policy, it is not enough to show that there is an alternative redistributive mechanism which is theoretically superior.
