What's Wrong With Torts as Wrongs (or Redirecting Civil Recourse Theory)

Abstract:     
In Torts as Wrongs, Professors John C.P. Goldberg and Benjamin C. Zipursky offer their most complete and accessible explanation of the civil recourse theory of tort law. A purely descriptive account, civil recourse theory has both positive and negative components. The positive side holds that tort law is a scheme of private rights for the redress of legal wrongs, while the negative side says the law eschews strict liability and forbids instrumentalism. The present paper challenges both prongs of this theory, identifying three problems which undermine its credibility. First, Goldberg and Zipursky do not objectively observe tort law and uncritically report what they see; rather, they use a partial perspective to interpret the facts and their own predilections to support their subjective conclusions. Second, given their biased view, Goldberg and Zipursky seriously misinterpret the concept of strict liability, grossly underestimating its pervasiveness, embeddedness, and practical and structural significance. Third, and for similar reasons, the authors simply ignore the prodigious presence of instrumental considerations in the core wrongs-based action of negligence, viewing them as marked departures from tort law rather than accretive adaptations to its evolving content. Having exposed the descriptive weaknesses of civil recourse theory, the paper encourages the authors to recast that theory as a normative enterprise — one which prescribes a treatment for unprincipled instrumentalism and a plan for restoring rights and wrongs to tort law.

Number of Pages in PDF File: 66

Keywords: Goldberg, Zipursky, Torts, Descriptive Theory, Interpretive Theory, Civil Recourse, Wrongs, Strict Liability, Human Sciences, Instrumentalism

JEL Classification: K13

working papers series