Torts Against the State

Civil Wrongs and Justice in Private Law, Paul B. Miller and John F.K. Oberdiek, eds., Oxford U. Press (2020, Forthcoming)

Notre Dame Legal Studies Paper No. 1921

42 Pages Posted: 12 Feb 2019

Date Written: February 11, 2019

Abstract

The state provides the forum in which private parties can seek recourse for tortious wrongs other private parties cause. The state can also be liable for torts it commits. These observations are commonplaces. The state can also be a tort plaintiff, however, and that phenomenon has important implications for tort theory. Natural persons and artificial persons like the state have different kinds of interests, and these interests, in turn, implicate different sets of values. Accommodating torts against personified entities like the state will require tort theorists to significantly amend leading models, which presume wrongs against individual, natural persons. Some of these changes may be difficult for some scholars to stomach given their other theoretical commitments, including, especially, their normative priors. Nevertheless, a more complete theory must account for torts against the state.

Keywords: Tort Law, Jurisprudence, Private Law Theory, Legal Theory

JEL Classification: K13

Suggested Citation

Miller, Paul B. and Pojanowski, Jeffrey A., Torts Against the State (February 11, 2019). Civil Wrongs and Justice in Private Law, Paul B. Miller and John F.K. Oberdiek, eds., Oxford U. Press (2020, Forthcoming); Notre Dame Legal Studies Paper No. 1921. Available at SSRN: https://ssrn.com/abstract=3332673 or http://dx.doi.org/10.2139/ssrn.3332673

Paul B. Miller (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

HOME PAGE: http://law.nd.edu/directory/paul-miller/

Jeffrey A. Pojanowski

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

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