Convergence and Contrast in Tort Scholarship: An Essay in Honor of Robert Rabin

36 Pages Posted: 21 Aug 2012  

John C. P. Goldberg

Harvard Law School

Benjamin C. Zipursky

Fordham University School of Law

Date Written: August 20, 2012

Abstract

This contribution to a festschrift honoring Professor Robert Rabin examines overlap and divergence between his approach to Torts and our own civil recourse theory. We first flesh out Rabin’s approach by identifying three antinomies that serve as organizing themes in his work – individualized v. bureaucratic compensation; the fault principle v. enterprise liability; and Realism v. Formalism. We then provide an in-depth analysis of Seffert v. Los Angeles Transit Lines, a decision that Rabin and his casebook co-author Marc Franklin helped make famous among torts scholars. Seffert illustrates both the power and the limitations of law-and-society methodology as applied to tort law. It also demonstrates the capacity of civil recourse theory to capture dimensions of tort law that are obscured by other approaches, and to elucidate contemporary issues in tort reform, such as the propriety of limits on pain and suffering damages.

Keywords: Civil Recourse, Compensation, Damages, Enterprise Liability, Fault, Formalism, Law and Society, Pain and Suffering, Rabin, Realism, Seffert, Strict Liability, Tort, Tort Reform, Traynor

Suggested Citation

Goldberg, John C. P. and Zipursky, Benjamin C., Convergence and Contrast in Tort Scholarship: An Essay in Honor of Robert Rabin (August 20, 2012). DePaul Law Review, Vol. 61, No. 467, 2012; Fordham Law Legal Studies Research Paper No. 2132805. Available at SSRN: https://ssrn.com/abstract=2132805

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

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