Abstract

http://ssrn.com/abstract=1576644
 
 

Citations (4)



 
 

Footnotes (312)



 


 



Torts as Wrongs


John C. P. Goldberg


Harvard Law School

Benjamin C. Zipursky


Fordham University School of Law


Texas Law Review, Vol. 88, 2010
Fordham Law Legal Studies Research Paper No. 1576644

Abstract:     
Torts scholars hold different views on why tort law shifts costs from plaintiffs to defendants. Some invoke notions of justice, some efficiency, and some compensation. Nearly all seem to agree, however, that tort law is about the allocation of losses. This Article challenges the widespread embrace of loss-based accounts as fundamentally misguided. It is wrongs not losses that lie at the foundation of tort law. Tort suits are about affording plaintiffs an avenue of civil recourse against those who have wronged them.

Although torts were once routinely understood as wrongs, since Holmes’s time, tort scholars have tended to suppose that the concept of a wrong is either too moralistic to explain the terms on which liability is imposed or so capacious as to be vacuous. We demonstrate that torts can be understood as a special kind of wrong without draining the content from the concept of a wrong. Specifically, every tort is a legal, relational, civil, and injury-inclusive wrong. In turn, tort law provides victims of such wrongs with a power to obtain recourse against those who have wronged them.

A view of torts as wrongs is not only conceptually available but interpretively superior to loss-based views. Indeed, the latter prove to be incapable of accounting for basic features of tort law, including: claims that are viable without proof of loss; claims that are not viable even though an actor has foreseeably caused a victim to suffer a loss; suits giving rise to remedies that do not involve the shifting of a loss; suits in which recovery turns on whether a certain kind of loss is parasitic on a predicate injury; and suits in which recovery is denied, or defenses rendered inapplicable, because there is a heightened or attenuated connection between the agency of the defendant and the plaintiff’s injury. In contrast to loss-based theories, a wrongs-based theory can easily account for all of these aspects of basic tort doctrine.

Perhaps the greatest challenge to wrongs-based theories lies in explaining what value there is, apart from loss-shifting, in having tort law. Our answer is that tort law is law for the recourse of wrongs. Hand-in-hand with their articulation of legal wrongs, courts provide victims of such wrongs with an avenue of civil recourse against their wrongdoers. This is what tort law does. It makes real the principle that for every right there is a remedy.

Number of Pages in PDF File: 71

Accepted Paper Series


Download This Paper

Date posted: March 26, 2010  

Suggested Citation

Goldberg, John C. P. and Zipursky, Benjamin C., Torts as Wrongs. Texas Law Review, Vol. 88, 2010 ; Fordham Law Legal Studies Research Paper No. 1576644. Available at SSRN: http://ssrn.com/abstract=1576644

Contact Information

John C. P. Goldberg (Contact Author)
Harvard Law School ( email )
Areeda 232
1545 Massachusetts Ave
Cambridge, MA 02138
United States
617-496-2086 (Phone)
Benjamin C. Zipursky
Fordham University School of Law ( email )
140 West 62nd Street
New York, NY 10023
United States
Feedback to SSRN


Paper statistics
Abstract Views: 4,096
Downloads: 763
Download Rank: 16,668
Citations:  4
Footnotes:  312

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo3 in 0.719 seconds